Opinion
B209209.
4-23-2009
THE PEOPLE, Plaintiff and Respondent, v. RESA MONIQUE CAIN, Defendant and Appellant.
Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
INTRODUCTION
Appellant Resa Monique Cain appeals from the judgment entered following her no contest plea to a charge of possessing cocaine base for sale. Appellant contends the trial court improperly denied her suppression motion. We dismiss.
FACTS
On the afternoon of June 3, 2008, Los Angeles Police Department Officers Raul Barron and Raquel Trujillo saw appellant made an illegal right turn in downtown Los Angeles. Appellant complied with the officers hand signals to pull over and stop her car. Trujillo contacted the police dispatcher with the license plate of appellants car and learned that it was "wanted" for involvement in a violent felony. Before she heard this information about the car, Trujillo intended to issue appellant a citation for the traffic violation.
Because the case did not go to trial, the facts are taken from the evidence presented at the preliminary hearing.
The officers ordered appellant and her passenger out of the car and handcuffed both of them. As Trujillo conducted a pat-search of appellant for weapons, she "felt a glass cylindrical object" in appellants rear pants pocket. Trujillo removed the object from the pocket and discovered it was a crack pipe containing brown residue. Trujillo continued to search appellants person and found a bottle containing several pieces of off-white solids. Barron found $507 in neatly folded stacks of cash in a tote bag in the trunk of the car and three bottles of pink liquid in the glove compartment.
Detective Burt Feldtz testified he had examined the off-white solids and concluded they were rock cocaine. Similarly, he concluded the pink liquid was methadone. He opined they were possessed for the purpose of sale.
At the June 19, 2008 suppression hearing, appellant moved to suppress the seized evidence. The magistrate denied the motion. On July 3, 2008, the prosecutor filed the Information. Appellant waived arraignment and pled no contest to a charge of possessing cocaine base for sale. She did not renew her suppression motion in the superior court. The court placed appellant on formal probation for three years.
DISCUSSION
Appellant contends the trial court erred by denying her suppression motion. However, appellants failure to renew her motion in the superior court created a threshold issue regarding reviewability. At our request, the parties filed letter briefs addressing whether the denial of appellants suppression motion is reviewable in light of People v. Lilienthal (1978) 22 Cal.3d 891 (Lilienthal). In Lilienthal, the California Supreme Court held that a defendant whose suppression motion was denied at the preliminary hearing must re-raise the matter in the superior court to preserve it for appellate review. (Id. at p. 896.) The Lilienthal rule continues to apply in the wake of trial court unification, and it applies even though the suppression motion is denied by a superior court judge acting in the role of magistrate. (People v. Richardson (2007) 156 Cal.App.4th 574, 589, 591; People v. Garrido (2005) 127 Cal.App.4th 359, 364.)
Appellant argues in her letter brief that the rule set forth in Lilienthal is dicta and contrary to Penal Code section 1538.5, subdivision (m). She is wrong. The Lilienthal court held that a defendant must raise his or her suppression issue in the superior court, not just before the magistrate, in order to preserve it for appellate review: "Under [Penal Code section 1538.5,] subdivision (m), it is sufficient that a motion to suppress be made `at some stage of the proceedings. Defendant did so at the preliminary hearing. The People, however, assert that this statute should not be interpreted to allow a defendant to bypass the superior court. We agree that it should be interpreted to require that the matter be raised in the superior court to preserve the point for review on appeal, for it would be wholly inappropriate to reverse a superior courts judgment for error it did not commit and that was never called to its attention. We do not agree, however, that the matter must be raised in the superior court by a motion to suppress rather than a section 995 motion, for subdivision (m) itself acknowledges the propriety of a section 995 motion to test the validity of a search or seizure." (Lilienthal, supra, 22 Cal.3d at p. 896.)
Because appellant neither renewed her suppression motion in the superior court nor raised the issue in the context of a Penal Code section 995 motion, her claim is not reviewable and must be dismissed.
DISPOSITION
The appeal is dismissed.
We concur:
MALLANO, P. J.
ROTHSCHILD, J.