Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. VA098160, Roger T. Ito, Judge.
David McNeil Morse, under appointment by the Court of Appeal, and John E. Guidry II, in pro. per., for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Defendant John Earl Guidry, Jr., appeals from the judgment entered following his plea of no contest to possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)). We appointed counsel to represent defendant on appeal. After examining the record, counsel filed a request for an independent review of the record for arguable issues pursuant to People v. Wende (1979) 25 Cal.3d 436.
All further statutory references are to the Penal Code.
On February 22, 2008, we advised defendant that he had 30 days within which to submit personally by brief or letter any contentions or arguments that he wanted us to consider. On March 24, defendant filed a supplemental letter brief in which he challenges the denial of the motion to suppress evidence that he made at his preliminary hearing (§ 1538.5, subd. (f)). We affirm.
PROCEDURAL BACKGROUND
At the preliminary hearing, defendant represented himself. While cross-examining the arresting deputy, defendant stated his desire to make a motion to suppress the evidence. Despite defendant’s failure to comply with the notice requirements of section 1538.5, subdivision (f)(2), and over the People’s objection, the magistrate entertained defendant’s motion. After a consideration of the evidence, including defendant’s testimony, the magistrate denied defendant’s suppression motion and held him to answer.
The People thereafter filed an information in which they charged defendant with possession of a firearm by a felon. The People further alleged that defendant suffered one prior “strike” conviction (§§ 667, subds. (b)-(i), 1170.12) and served three prior prison terms (§ 667.5, subd. (b)).
Defendant, still acting in pro. per., filed a Pitchess motion. On the date the motion was scheduled to be heard, retained counsel substituted in for defendant. The trial court thereafter denied defendant’s Pitchess motion without prejudice. Following the filing of a second Pitchess motion, the trial court held an in camera hearing but concluded that disclosure of documents was not required.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
Defendant’s Pitchess motions and the reporter’s transcript of the in camera hearing on his second Pitchess motion are not part of the record on appeal.
A date was scheduled for defendant’s trial and his renewed motion to suppress evidence (§ 1538.5, subd. (i)). Following several continuances, the parties reached a plea agreement. In accordance with this agreement, defendant pled no contest to the crime charged, and the trial court sentenced him to state prison for the upper term of three years at 50 percent credit. The court also granted the People’s motion to strike the sentencing enhancement allegations. In light of defendant’s plea, the trial court took his motion to suppress evidence off calendar. Defendant thereafter filed a notice of appeal.
Defendant challenged the ruling on his second Pitchess motion in his notice of appeal. He did not raise this challenge in his supplemental letter brief.
The facts are taken from the transcript of the preliminary hearing.
Around 10:15 p.m. on November 14, 2006, Los Angeles Sheriff’s Deputy William Richardson observed defendant walking in a very poorly lit parking lot on Pioneer Boulevard in the City of Cerritos. The parking lot was not a thoroughfare through which someone would walk. The parking lot was surrounded by one continuous wall and had only one entrance and exit on Pioneer Boulevard.
When defendant walked by Deputy Richardson, the latter smelled a strong scent of burnt marijuana. Believing that defendant might be engaged in narcotics activity, the deputy asked defendant to stop.
Defendant, who was wearing “very baggy clothing,” stopped seven to eight feet away from the deputy. Defendant initially refused to comply with Deputy Richardson’s directive to show both of his hands. When defendant reached for his right rear pocket, Deputy Richardson feared that defendant might be reaching for a weapon or hiding narcotics and drew his gun. Defendant then complied with the deputy’s directive.
Deputy Richardson thereafter conducted a pat down search during which he recovered from defendant’s right rear pants pocket a fully loaded firearm that appeared capable of being fired. Another deputy found six live .38 caliber rounds in defendant’s right front pants pocket. No marijuana was recovered from defendant.
DISCUSSION
In order to preserve the issue of the legality of a search or seizure for appeal under subdivision (m) of section 1538.5, a defendant whose suppression motion was denied by magistrate at a preliminary hearing must renew his motion to suppress in the trial court after the information is filed. (People v. Lilienthal, supra, 22 Cal.3d at p. 896; People v. Garrido (2005) 127 Cal.App.4th 359, 363-364; People v. Hinds (2003) 108 Cal.App.4th 897, 900; People v. Hoffman (2001) 88 Cal.App.4th 1, 2-3.) The defendant also must secure a ruling on the motion. (People v. Ellers (1980) 108 Cal.App.3d 943, 951.) Although, in this case, defendant renewed his suppression motion in the trial court, he failed to secure a ruling on the motion prior to entering his plea. Consequently, he waived his Fourth Amendment claim on appeal. (Ibid.)
Section 1538.5, subdivision (m), in pertinent part provides that “[a] defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty. Review on appeal may be obtained by the defendant provided that at some stage of the proceedings prior to conviction he or she has moved for the return of property or the suppression of the evidence.”
A motion pursuant to section 995 also “will be effective to preserve the Fourth Amendment issue on an appeal following a guilty plea only when it appears from the transcript of the preliminary hearing that essential evidence was illegally obtained.” (People v. Lilienthal (1978) 22 Cal.3d 891, 897; accord, People v. McDonald (2006) 137 Cal.App.4th 521, 528-529.) Defendant did not move to dismiss the information pursuant to section 995 after the information was filed.
Apart from a consideration of the contention raised by defendant in his supplemental letter brief, we have examined the entire record and are satisfied that defendant’s counsel has complied fully with his responsibilities. No arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284; People v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende, supra, 25 Cal.3d at p. 441.)
A defendant who waives his right to a jury trial as a precursor to a no contest plea and in exchange for a specified upper term sentence, waives his right to a jury trial on all issues, including sentencing issues. (People v. Berutko (1969) 71 Cal.2d 84, 94.) Thus, in light of defendant’s waiver of his right to a jury trial and his agreement to the precise sentence imposed, the constitutionality of defendant’s upper term sentence (Cunningham v. California (2007) 549 U.S. 270; Blakely v. Washington (2004) 542 U.S. 296) is not an issue in this case. (See generally People v. Hester (2000) 22 Cal.4th 290, 295.)
The judgment is affirmed.
We concur: MALLANO, Acting P. J., VOGEL, J.