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P. v. Harris

P. v. Harris
05:07:2009



P. v. Harris



Filed 3/24/09 P. v. Harris 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



(San Joaquin)



----



THE PEOPLE,



Plaintiff and Respondent,



v.



ZACHARY TERRY HARRIS,



Defendant and Appellant.



C056845



(Super. Ct. No. SF101779A)



Pursuant to a plea bargain, defendant Zachary Terry Harris pleaded no contest to one count of possession of a controlled substance (cocaine base). (Health & Saf. Code, 11350, subd. (a).)



On appeal, defendant contends the trial court erred and his counsel performed ineffectively regarding a motion to suppress the evidence. We dismiss the appeal because defendant failed to obtain a certificate of probable cause. (Pen. Code, 1237.5; People v. Stubbs (1998) 61 Cal.App.4th 243 (Stubbs).)



Background



On September 21, 2006, Stockton Police Sergeant Reynosa and three other officers went to defendants residence in response to a shooting that had occurred nearby. Defendant said the victim of the shooting had come to his residence to use the phone. The officers contacted defendant, detained him, and began searching the home.



Officers Swain and Rodriguez arrived at defendants residence after this first group of officers. Sergeant Reynosa informed Swain that defendant was on parole. Swain ran a computer check, confirmed defendant was on parole, and then searched the garage. There, Swain found a small velvet bag on a couch that contained cocaine base along with other items that implicated defendant in the possession offense.



At the preliminary hearing, defendant moved unsuccessfully to suppress the evidence. The preliminary hearing judge ruled that Swains search of the garage was lawful since the first officers were properly at defendants residence investigating a shooting, one of these officers had told Officer Swain that defendant was on parole, and Swain confirmed defendants parole status prior to conducting the search.



Defendant filed his motion to suppress in the superior court, but entered into his plea bargain prior to obtaining a hearing or a ruling on the motion.



Discussion



Defendant contends the preliminary hearing judge erroneously denied his motion to suppress. Defendant also claims his counsel was ineffective (1) in failing to renew the suppression issue in the superior court as required for appellate review (if indeed we find such failure), and (2) in failing to present readily available evidence in support of the motion to suppress showing that another officer had entered and searched the garage before Officer Swain arrived and confirmed defendants parole status.



To obtain appellate review of a motion to suppress, a defendant who has made the motion at the preliminary hearing (which defendant did here) must again raise the issue for ruling in the superior court (which defendant did not do here). (People v. Lilienthal (1978) 22 Cal.3d 891, 896-897; People v. Kain (1989) 212 Cal.App.3d 816, 820-822.) If this were not the procedure, an appellate court could reverse a superior court for error it did not commit and that was never called to its attention. (Lilienthal, supra, at p. 896; Kain, supra, at p. 821.)



Although defendant has failed to preserve the suppression issue for appellate review, he has a fallback position: he claims his counsel was ineffective in this respect. However, if a defendant claims that he received ineffective assistance of counselprior to a no contest plea, as here, that claim is considered a challenge to the propriety of the plea. (Stubbs, supra, 61 Cal.App.4th at pp. 244-245.) As such, the claim requires a certificate of probable cause from the trial court to be heard on appeal. (Ibid.; see also People v. Mendez (1999) 19 Cal.4th 1084, 1097-1098, 1099.) Defendant here did not obtain such a certificate, and his appeal must be dismissed. (Stubbs, supra, at p. 245.)[1]



Disposition



The appeal is dismissed.



DAVIS , J.*



We concur:



HULL , Acting P. J.



CANTIL-SAKAUYE , J.



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[1] This resolution likewise encompasses defendants contention that his counsel was ineffective in failing to present readily available evidence for the motion to suppress at the preliminary hearing.



* Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.





Description Pursuant to a plea bargain, defendant Zachary Terry Harris pleaded no contest to one count of possession of a controlled substance (cocaine base). (Health & Saf. Code, 11350, subd. (a).)
On appeal, defendant contends the trial court erred and his counsel performed ineffectively regarding a motion to suppress the evidence. We dismiss the appeal because defendant failed to obtain a certificate of probable cause. (Pen. Code, 1237.5; People v. Stubbs (1998) 61 Cal.App.4th 243 (Stubbs).) The appeal is dismissed.


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