Opinion
2d Crim. No. B232238
02-02-2012
THE PEOPLE, Plaintiff and Respondent, v. STEPHEN SCOTT PETLANSKY, Defendant and Appellant.
Lyn A. Woodward, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Taylor Nguyen, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 1347923)
(Santa Barbara County)
Stephen Scott Petlansky appeals the judgment entered after he pled no contest to possessing and being under the influence of methamphetamine (Health & Saf. Code, §§ 11377, subd. (a), 11550, subd. (a).) The trial court suspended imposition of sentence and placed appellant on three years formal probation pursuant to Proposition 36 with various terms and conditions. He contends his trial attorney provided constitutionally ineffective assistance by failing to renew his motion to suppress in the trial court. Because appellant did not seek or obtain a certificate of probable cause in accordance with Penal Code section 1237.5 and his claim is not among those for which no certificate is necessary, we dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
Appellant was stopped by a Santa Maria police officer for driving his motorcycle in violation of the basic speed law (Veh. Code, § 22350) and excessive exhaust noise (Veh. Code, § 27150). During the stop, appellant admitted that he had methamphetamine and directed the officer to the saddlebag of his motorcycle. With appellant's consent, the officer searched the saddlebag and found a baggie of methamphetamine inside a cigarette box. The officer also found a broken piece of a light bulb with methamphetamine residue on it, which suggested that it had been used to smoke the drug.
Appellant was arrested and charged with possessing and being under the influence of methamphetamine. He pled not guilty and subsequently filed a motion to suppress pursuant to Penal Code section 1538.5. The motion was heard concurrently with the preliminary hearing. The magistrate denied the motion and held appellant to answer on the charges. After an information was filed, appellant entered a plea of not guilty. He did not thereafter renew his suppression motion in accordance with subdivision (i) of section 1538.5, or move to dismiss the information pursuant to Penal Code section 995. Instead, he withdrew his plea and entered a plea of no contest to both charges.
Appellant filed a timely notice of appeal challenging his conviction. He did not seek or obtain a certificate of probable cause in accordance with Penal Code section 1237.5, subdivision (b).
DISCUSSION
Appellant did not renew his suppression motion in the superior court prior to entering his no contest plea. He also failed to seek or obtain a certificate of probable cause pursuant to Penal Code section 1237.5. Appellant nevertheless contends that the Fourth Amendment claim upon which his suppression motion was based is subject to our review on direct appeal under the theory that his trial attorney provided ineffective assistance of counsel by failing to renew the motion. The law is to the contrary.
In order to obtain direct appellate review of a magistrate's denial of a motion to suppress under Penal Code section 1538.5, a defendant must either renew the motion in the superior court or bring a motion to dismiss under Penal Code section 995. (People v. Lilienthal (1978) 22 Cal.3d 891, 896; People v. Hoffman (2001) 88 Cal.App.4th 1, 3; People v. Richardson (2007) 156 Cal.App.4th 574, 586-595 (Richardson))Where a defendant who has not renewed a suppression motion pleads guilty or no contest, he or she must obtain a certificate of probable cause in order to claim on appeal that trial counsel's failure to renew the motion amounts to ineffective assistance. (Pen. Code, § 1237.5, subd. (b); Richardson, at p. 596.) Appellant pled no contest and did not obtain a certificate of probable cause, so his claim of ineffective
assistance is not cognizable in this appeal.
We have examined the merits of the claimed unlawful detention and ensuing search. We are satisfied that such a claim is without merit.
Appellant cites People v. Hart (1999) 74 Cal.App.4th 479, for the proposition that a claim of ineffective assistance of counsel based on the failure to renew a suppression motion is reviewable on direct appeal. Hart is inapposite because the defendant in that case appealed from a conviction following a jury trial. (Id. at p. 484.) Appellant was convicted pursuant to a no contest plea. Because his claim of ineffective assistance of counsel does not relate to "proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed," it cannot be raised without a certificate of probable cause. (Richardson, supra, 156 Cal.App.4th at p. 596.) Accordingly, his appeal must be dismissed.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P.J.
COFFEE, J.
Edward H. Bullard, Judge
Superior Court County of Santa Barbara
Lyn A. Woodward, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Taylor Nguyen, Deputy Attorney General, for Plaintiff and Respondent.