P. v. Harter

Filed 2/14/06 P. v. Harter CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa M. Chung, Judge. Affirmed in part and remanded.

Law Offices of Aron Laub and Aron Laub for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury found defendant and appellant Emma Harter guilty in count 1 of cruelty to animals in violation of Penal Code section 597, subdivision (b).^[1] Defendant was found guilty in count 2 of misdemeanor battery upon an animal control officer in violation of section 243, subdivision (b). In count 3, defendant was convicted of misdemeanor animal endangering in violation of Los Angeles County Code Title 10, section 10.40.010, subdivision (p). Defendant was convicted in count 4 of the misdemeanor of unsanitary conditions in violation of Los Angeles County Code Title 10, section 10.40.010, subdivision (c). In count 5, defendant was convicted of failure to isolate sick animals in violation of Los Angeles County Code Title 10, section 10.40.010, subdivision (i).

Imposition of sentence was suspended as to count 1, and defendant was placed on probation for a period of five years. The trial court imposed no sentence as to the misdemeanors in counts 2 though 5. This timely appeal is taken from the judgment.

Defendant's contentions on appeal focus on the legality under the Fourth Amendment of a search of her residence in which more than 200 Chihuahuas living in unsanitary and unsafe conditions were seized. We conclude the search and seizure contention has been waived for purposes of appeal, because it was raised before the magistrate at the preliminary hearing but not renewed in the trial court. We decline to reach the merits of the search and seizure issue by means of defendant's argument that her trial counsel was constitutionally deficient for not renewing the motion to suppress evidence, leaving the issue for resolution by means of a petition for writ of habeas corpus should defendant seek that remedy. We remand to the trial court for imposition of sentence as to counts 2 though 5, and otherwise affirm.

DISCUSSION

I

THE FAILURE TO MAKE A MOTION TO SUPPRESS IN THE

TRIAL COURT PURSUANT TO SECTION 1538.5 PRECLUDES

APPELLATE REVIEW OF THE MERITS OF THE ISSUE

Defendant argued in her opening brief that the search conducted at her residence pursuant to an inspection warrant violated the Fourth Amendment. Defendant recognized that her motion to suppress evidence pursuant to section 1538.5 was heard prior to the preliminary hearing by Judge Lisa M. Chung, sitting as a magistrate, but was not renewed in the superior court as mandated by section 1538.5, subdivision (m) and People v. Lilienthal (1978) 22 Cal.3d 891, 896. Defendant contended in her opening brief that she was excused from renewing the motion to suppress in the trial court because Judge Chung was both the preliminary hearing magistrate and the trial judge, and that Lilienthal was inapplicable under these circumstances following the unification of the municipal and superior courts.

The Attorney General pointed out in respondent's brief that a consistent line of cases had applied Lilienthal to postunification proceedings. (People v. Garrido (2005) 127 Cal.App.4th 359, 363-365; People v. Hinds (2003) 108 Cal.App.4th 897, 900; People v. Hoffman (2001) 88 Cal.App.4th 1, 2-3; People v. Hart (1999) 74 Cal.App.4th 479, 485-486.) â€