P. v. Gomez

Filed 3/16/07 P. v. Gomez CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. Ferguson, Judge.

Allen E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

On October 12, 2004, appellant, Trinidad Gomez, was charged in a felony complaint with possession of methamphetamine for sale (Health & Saf. Code,  11378, count one), possession of a controlled substance while in possession of a firearm (Health & Saf. Code, 11370.1, subd. (a), count two), opening a place for the purpose of selling methamphetamine and marijuana (Health & Saf. Code,  11366, count three), possession of marijuana for sale (Health & Saf. Code,  11359, count four), possession of an assault weapon (Pen. Code,  12280, subd. (b), count five), being a felon in possession of a firearm (Pen. Code,  12021, subd. (a), count six), and possession of a short barreled shotgun or rifle (Pen. Code,  12020, subd. (a), count seven).^[1]Count one also included special allegations that appellant was personally armed with a firearm in the commission of that offense ( 12022, subd. (c)) and that he had a prior narcotics conviction (Health & Saf. Code,  11370.2, subd. (c)). The complaint alleged that appellant had two prior serious felony convictions within the meaning of the three strikes law ( 1170.12) and a prior prison term enhancement ( 667.5, subd. (b)).

Appellant filed a suppression motion ( 1538.5) which was heard and denied by Judge Ferguson during the preliminary hearing on October 17, 2005. The court held appellant to answer on the allegations in the complaint. An information was filed on October 28, 2005. An amended information was filed on November 29, 2005.^[2] On December 6, 2005, the parties entered into a plea agreement before Judge Ferguson. Appellant pled no contest to counts one, two, four, and five. Appellant admitted the special allegations in count one, the two prior serious felony convictions within the meaning of the three strikes law, and the prior prison term enhancement. The remaining allegations were dismissed. The court indicated appellants prison sentence would be nine years.

On January 20, 2006, appellant moved to withdraw his plea. On March 16, 2006, appellant filed a motion to withdraw his plea. On March 23, 2006, appellants motion was heard and denied by Judge Ferguson. The court sentenced appellant to prison for the midterm of four years on count one, plus a consecutive term of four years for the special arming allegation ( 12022, subd. (c)). The court stayed appellants sentence for the prior drug conviction special allegation (Health & Saf. Code,  11370.2). The court imposed a consecutive one-year term for the prior prison term enhancement for a total prison term of nine years. Sentences on counts two, four, and five were ordered to be served concurrently to count one. The court ordered a restitution fine and granted applicable custody credits.

On appeal, appellant contends the trial court erred in denying his suppression motion. Respondent contends this issue is waived because appellant failed to renew his suppression motion in superior court pursuant to People v. Lilienthal (1978) 22 Cal.3d 891, 895-896 (Lilienthal), and therefore failed to preserve the issue for appellate review.^[3] We concur with respondent and will dismiss the appeal.

FACTS

Search

After receiving a tip from an anonymous informant of a possible marijuana farm at 25714 Road 159 in Visalia, Tulare County Sheriffs Deputy Patrick Potter went to the residence on October 4, 2005. The property included a residence and two trailers. Potter received permission from Trinidad Gomez, Sr., appellants father, to search the property and the residence to investigate a possible marijuana garden.^[4] Gomez replied: Go ahead and search. We dont have any marijuana. Hurry up. You guys are always

here. Potter did not inquire concerning ownership in the trailers.

Appellant walked out of one of the trailers after his father called to him. Appellant tried to slam the door to the trailer shut, but there was a bucket between the door and the entry way. Potter told appellant that his father gave permission to the officers to search the property. Appellant said there was no marijuana on the property. Potter asked several times for permission to search the trailer, but appellant did not reply and would lead Potter in a different direction.

Potter asked Deputy Shaw to look at the trailer. Shaw gazed into the open trailer door. In plain view, Shaw saw a triple beam scale and could smell the strong odor of marijuana coming from inside the trailer. The deputies discussed obtaining a warrant. They failed to do so and handcuffed appellant. Another person exiting the second trailer was detained for officer safety. Appellant initially said no one else was on the property, but he yelled out and Jose Gomez came out of the trailer appellant had exited.

Detectives outside the first trailer found a small bindle containing a green leafy substance outside the trailer entrance. Detective Frank Saragoza conducted a search and inventory of the first trailer. There were large amounts of marijuana, methamphetamine, a cutter, a digital scale, appellants identification, firearms, and live .22 and .357 caliber bullets.

Suppression Motion

Prior to the preliminary hearing, appellant filed a written suppression motion challenging the scope of Gomezs consent to search the property. At the conclusion of the suppression and preliminary hearings, Judge Ferguson found that based on the initial consent to enter the property, the scale in plain view, and the smell of marijuana, the officers acted reasonably in entering the trailer without a search warrant.

After an information and amended information were filed, appellant entered a no contest plea as set forth above. Prior to sentencing, appellant filed a motion to withdraw his plea. Appellant contended, inter alia, that his original trial counsel failed to file a Romero Act (sic) and failed to go to my parents house to investigate the illegal search and seizure of my residence (sic). At the sentencing hearing, appellant complained that he had a chance to have [the] illegal search and seizure granted and it wasnt investigated. Judge Ferguson denied appellants motion to withdraw his plea and sentenced appellant according to the terms of the plea agreement.

DISCUSSION

Appellant contends his father did not consent to a search of appellants trailer and that no exigent circumstance justified entry into the trailer without a search warrant. Respondent contends that appellant failed to raise this issue in superior court after it was heard by the magistrate and the issue is, therefore, barred by the Lilienthal doctrine.

In Lilienthal, the defendant moved to suppress evidence during a preliminary hearing. The motion was denied and the defendant failed to raise the issue again in superior court. Lilienthal reasoned that although the defendant had raised the issue during the proceedings as required by section 1538.5, subdivision (m), the defendant could not bypass raising the issue in the superior court to preserve review on appeal. (Lilienthal, supra, 22 Cal.3d at pp. 895-896.)

Ten years ago, this court noted there was an exception to raising a suppression issue in superior court when the entire proceeding was conducted before a magistrate. (People v. Callahan (1997) 54 Cal.App.4th 1419 (Callahan).) In Callahan, our court recognized that legislation in 1992 permitted felony charges to be adjudicated entirely in municipal court without reaching superior court. Callahan reasoned that when a case began in municipal court, the defendant raised and lost a suppression motion before a magistrate, entered a plea and was sentenced before a magistrate, the case would never reach superior court for review. (Id. at pp. 1422-1428.) In such cases, a single suppression motion before a magistrate was sufficient to preserve the issue for appellate review. (Ibid.)

A more recent decision observed that the legal basis of Callahan was removed by subsequent legislative developments, including trial court unification and statutory changes. (People v. Garrido (2005) 127 Cal.App.4th 359, 365 (Garrido)). Garrido noted that all of the proceedings in Callahan were before the municipal court whereas in Garrido, the sentencing hearing occurred in superior court. (Ibid.) In Garrido, at least one proceeding occurred in superior court.

Garrido noted the Legislature added section 859c^[5]and Government Code section 70212, subdivisions (e) and (f)^[6]in response to court consolidation. These statutes require that any matter heard by a judge or magistrate which is subject to rehearing, must be heard by a superior court judge other than the judge who originally heard the matter.^[7] Other statutes relied upon by Callahan that permitted a municipal court to take felony pleas and to sentence defendants with felony convictions were amended or repealed by the legislature. (Garrido, supra, 127 Cal.App.4th 359, 366.) The unification of the municipal and superior courts has not abrogated the need for a renewal of a motion to suppress evidence following certification of a case to the superior court. (Id. at p. 364.)

Appellant argues that he renewed his suppression motion to Judge Ferguson during his motion to withdraw his plea and that he has, therefore, fulfilled the requirement in Lilienthal to renew his suppression motion in superior court. Appellant, however, alleged that his original trial counsel failed to investigate the facts underlying the search and seizure. In the written motion, appellant filed a declaration stating that his counsel failed to go to my parents house to investigate the illegal search and seizure of my residence. During the motion to withdraw his plea, appellant stated to the court that the search and seizure wasnt investigated. These allegations were not a renewal of the suppression motion; they were an assertion that trial counsel failed to adequately investigate the facts of appellants case.

After trial court consolidation, defendants are required to file their suppression motions before the superior court. Once Judge Ferguson held appellant to answer on felony allegations, the prosecutor filed an information and an amended information in superior court. When Judge Ferguson took appellants plea and sentenced appellant, he did so not as a magistrate but as a superior court judge. Appellant was required to renew his suppression motion in superior court but failed to do so.

Appellant was further required under section 859c to renew his suppression motion to a judge other than Judge Ferguson unless the parties stipulated to Judge Ferguson ruling on the renewed suppression motion. Even if we were to construe appellants motion to withdraw his plea as including a suppression motion, appellant failed to bring the motion to a judge other than Judge Ferguson or to obtain a stipulation that Judge Ferguson could hear the renewed motion. Appellant failed to comply with the procedural requirements of section 859c and Government Code section 70212, subdivisions (e) and (f).

After court consolidation, criminal defendants seeking review of suppression motion rulings on appeal must renew their motions before the superior court. Appellant failed to do so. As noted in Garrido, our Callahan case has been superseded by court consolidation and subsequent legislative enactments, repeals, and amendments. Appellants failure to follow current statutory procedures and Lilienthal is fatal to appellate review of his challenge to the initial ruling on his suppression motion at the conclusion of the preliminary hearing.

DISPOSITION

The appeal is dismissed without prejudice to any rights appellant may have to relief by way of a petition for writ of habeas corpus.

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^*Before Vartabedian, Acting P.J., Harris, J., and Kane, J.

^[1] Unless otherwise noted, all statutory references are to the Penal Code.

^[2] The allegations of the amended information were nearly identical to the criminal complaint except that the People dropped count seven.

^[3] Respondent further argues that the trial court properly denied the suppression motion. In light of our disposition, we do not reach this issue.

^[4] To avoid confusion, we refer to appellants father as Gomez and to appellant himself as appellant.

^[5] Section 859c provides: Procedures under this code that provide for superior court review of a challenged ruling or order made by a superior court judge or a magistrate shall be performed by a superior court judge other than the judge or magistrate who originally made the ruling or order, unless agreed to by the parties.

^[6] Subdivision (e) of Government Code section 70212 provides: Matters of a type previously subject to rehearing by a superior court judge remain subject to rehearing by a superior court judge, other than the judge who originally heard the matter.

Subdivision (f) of Government Code section 70212 states: Penal Code procedures that necessitate superior court review of, or action based on, a ruling or order by a municipal court judge shall be performed by a superior court judge other than the judge who originally made the ruling or order.

^[7] Section 859c permits the parties to stipulate that the original judge or magistrate may hear a matter again.