Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF128302A, Michael B. Lewis, Judge.
Jonathan E. Berger, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and Leanne Le Mon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, P.J.
Appellant Griselda Hernandez appeals from a conviction of possession of methamphetamine for sale. After the court denied her initial motion to suppress evidence (Pen. Code, § 1538.5) and declined to hear a second suppression motion brought several months later, appellant pled no contest and was sentenced to 16 months in prison. Appellant’s sole contention on appeal is that the court erred in refusing to hear her second suppression motion. We affirm.
Further statutory references are to the Penal Code unless otherwise specified.
The facts are taken from the report of the probation officer.
“On June 15, 2009, at approximately 1:45 p.m., the Kern County Sheriff’s Department executed a narcotics search warrant at a residence belonging to [appellant] and Pedro Guerrero, co-defendants, who were immediately detained. During a search of the residence, deputies located an operational video system and monitor, a police scanner and two cellular phones. In the restroom they located numerous plastic pieces and a smoking pipe. The toilet was still running as if it had been recently flushed and water was on the floor and toilet seat. It appeared that [appellant] had attempted to discard or destroy evidence prior to deputies entering the room. [¶] … [¶]
“[Appellant] denied her involvement and denied ownership of the items located; however, admitted using methamphetamine earlier in the day. She said the video system was used for security purposes.
“[Appellant] and Guerrero were arrested, transported to and booked in the Kern County Jail on related charges.
“During a strip search of [appellant], a deputy could see an object in [appellant’s] vagina; however, was unable to recover it. [Appellant] was then sent to Kern Medical Center for an examination and removal of the item. While being transported to the hospital, [appellant] reported that one of the items had ‘fell out;’ however, the other item was removed by medical staff. Each cylinder contained numerous black and white plastic bindles of suspected methamphetamine.
“[Appellant] was re-interviewed and admitted concealing the narcotics in her vagina prior to deputies executing the warrant. [¶] … [¶]
“A laboratory analysis of the contraband seized determined it to be 2.44 grams of a substance containing methamphetamine.…”
PROCEDURAL BACKGROUND
Appellant was charged in a two-count information with possession of methamphetamine for sale (Health & Saf. Code, § 11378) and possession of a device used to ingest a controlled substance (Health & Saf. Code, § 11364). The information also alleged that appellant had served three prior prison terms. (§ 667.5, subd. (b).)
On July 27, 2009, following her arraignment and preliminary hearing, appellant filed a section 1538.5 motion to suppress “all tangible and intangible evidence seized on or about June 15, 2009, and any fruits thereof” on the ground “the body cavity search conducted was unreasonable under the Fourth Amendment.” The motion was heard and denied on August 17, 2009.
On November 19, 2009, after retaining new counsel, appellant filed a second motion to suppress “all tangible and intangible evidence seized from [appellant] on June 15, 2009, and any and all fruits thereof.…” This time, the motion challenged the sufficiency of the affidavit supporting the warrant to search appellant’s residence.
The People filed opposition to appellant’s second suppression motion arguing, inter alia, that “[u]nder … section 1538.5, a defendant is entitled to make only one pretrial motion to suppress evidence in superior court. [Citation.] The entertainment of a second such motion is beyond the jurisdiction of the court. [Citation.]”
On December 3, 2009, the parties appeared for a status conference on appellant’s second suppression motion. The court declined to hear the motion, explaining: “Based on the fact that this matter has already been heard when [appellant] was represented by another attorney, I am going to deny the request to have another 1538.5 motion heard, so it will be dropped from calendar.”
On December 4, 2009, appellant pled no contest to possession of methamphetamine for sale, and the remaining count and allegations were dismissed. The court sentenced appellant to the low term of 16 months.
DISCUSSION
Appellant contends that the court erred in refusing to hear her second motion to suppress evidence under section 1538.5. We disagree.
“As a general rule, a defendant is allowed only one pretrial suppression motion under section 1538.5 in the superior court, and that court is without jurisdiction to hear a second motion. (Madril v. Superior Court (1975) 15 Cal.3d 73, 77-78, reaffirmed in People v. Brooks (1980) 26 Cal.3d 471, 478; People v. Dubose (1971) 17 Cal.App.3d 43, 47; People v. Superior Court (Green) (1970) 10 Cal.App.3d 477, 480-481). A second suppression motion may be brought at trial, only upon the narrow grounds that, at the initial motion made before trial, ‘opportunity for [the new] motion did not exist or the defendant was not aware of the grounds for the motion....’ (§ 1538.5, subd. (h); People v. Superior Court (Edmonds) (1971) 4 Cal.3d 605, 609-611; People v. O’Brien (1969) 71 Cal.2d 394, 403.) Thus, a defendant is required to raise all available grounds in support of his [or her] motion at the initial pretrial hearing in the superior court. As observed by the California Supreme Court in the context of raising new grounds on appeal, ‘To allow a reopening of the question on the basis of new legal theories to support or contest the admissibility of the evidence would defeat the purpose of Penal Code section 1538.5 and discourage parties from presenting all arguments relative to the question when the issue of admissibility of evidence is initially raised.’ [Citation.] That observation is equally valid in the context of pretrial proceedings, where allowing a defendant to raise each of the grounds for suppression at a separate hearing would result in inefficient use of court time, potentially duplicative presentation of evidence, and the possibility of a delayed trial.” (People v. Nelson (1981) 126 Cal.App.3d 978, 981-982 (Nelson), fn. omitted.)
Under the general rule, the court in this case properly declined to hear appellant’s second motion to suppress evidence. “There is nothing in the record to indicate that, at the time of [the] first suppression hearing, [appellant] was unaware of the ground later raised [in] the second [motion].… Obviously, [appellant] should have raised that ground at the first hearing.” (Nelson, supra, 126 Cal.App.3d at p. 982.) “[H]aving failed to show good cause why the sufficiency of the affidavit offered in support of the search warrant [for appellant’s residence] was not challenged at the initial section 1538.5 hearing, [appellant] was not entitled … to a second pretrial suppression hearing, and … the trial court [would have] acted in excess of its jurisdiction in hearing such second motion.…” (Id. at p. 984.)
We are unpersuaded by appellant’s attempt to avoid application of the general rule on the ground that Nelson, supra, 126 Cal.App.3d 978 (and cases cited therein) is inapposite because, in appellant’s words, Nelson “addresses a factual situation involving multiple challenges to the same search, ” not “the situation presented here, where the second suppression motion addresses a different search and seeks to suppress different evidence from the first one.” Appellant acknowledges the lack of published California authority supporting her position, which is, essentially, that a defendant may bring multiple pretrial motions to suppress evidence under section 1538.5, so long as they are directed at different searches.
Moreover, notwithstanding her assertions to the contrary, the two suppression motions in this case, though directed at different searches, were both designed to suppress the same evidence; i.e., all tangible and intangible evidence seized on June 15, 2009, including, significantly, the methamphetamine found on appellant’s person as a result of the body cavity search unsuccessfully challenged in appellant’s first suppression motion. In other words, both motions sought to suppress the same evidence on different grounds or legal theories. Under the above authorities, appellant was required to raise all available grounds in support of her suppression motion at the first hearing. Because appellant failed to do so, the court did not err in implicitly finding that it was without jurisdiction to consider her second suppression motion and taking it off calendar.
We find both motions sought to suppress the same evidence, even though the second motion listed certain items found in appellant’s residence, which were not specifically listed in appellant’s first motion. Both motions expressly stated that the lists provided were not exclusive, and that appellant was seeking to suppress all tangible and intangible evidence seized on June 15, 2009.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, J., DETJEN, J.