Opinion
C085681
10-12-2018
THE PEOPLE, Plaintiff and Respondent, v. NOEL ANDREW HOLLAND, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CF01454)
Defendant Noel Andrew Holland appeals following a no contest plea to drug possession for sale counts and contends the trial court erred in (1) denying his suppression motion, and (2) imposing penalty assessments on top of a criminal laboratory and drug program fee. We will affirm without prejudice to defendant raising his first contention by a habeas corpus petition.
FACTUAL AND PROCEDURAL BACKGROUND
After a complaint was filed, alleging a series of drug possession counts, defendant moved to suppress evidence obtained from a search. The magistrate held a joint preliminary hearing and hearing on defendant's motion to suppress. Following testimony, the magistrate continued the hearing to allow counsel to file additional briefing and evidence. When the matter resumed several weeks later, the magistrate denied the suppression motion. It then held defendant to answer on all charges.
Six months later, defendant pleaded no contest to four counts of possession for sale in exchange for the dismissal of other charges and a stipulated sentence. The plea was taken by a different judge than the judge who had sat as magistrate. Defense counsel did not renew the suppression motion before the new judge.
Defendant was then sentenced to the stipulated six-year eight-month term. For each count, the court imposed a laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)) along with a drug program fee (§ 11372.7, subd. (a)). Those fees were accompanied by an array of mandatory penalty assessments.
Undesignated statutory references are to the Health and Safety Code.
Defendant appealed and did not obtain a certificate of probable cause.
DISCUSSION
1.0 Defendant's Appeal of the Suppression Motion
On appeal, defendant first challenges the denial of his suppression motion. He acknowledges that to preserve such challenges on appeal, a defendant who moves to suppress during the preliminary hearing must renew that motion before the superior court. He nevertheless maintains his challenge is cognizable on appeal because his trial counsel rendered ineffective assistance in failing to renew the motion.
The People counter that the claim of ineffective assistance is not cognizable because defendant failed to obtain a certificate of probable cause. We agree with the People.
"A defendant can obtain appellate review of a search and seizure issue only if '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.' " (People v. Richardson (2007) 156 Cal.App.4th 574, 582-583 (Richardson); Pen. Code, § 1538.5, subd. (m).) But where a defendant moves to suppress evidence at the preliminary hearing, an appeal cannot be taken unless the search and seizure issue is raised before the superior court either by a renewed motion to suppress or a motion to set aside the information under Penal Code section 995. (Richardson, at p. 583; People v. Lilienthal (1978) 22 Cal.3d 891, 896.)
While the consequences of failing to renew a motion to suppress can in some circumstances be circumvented through a claim of ineffective assistance of counsel, a certificate of probable cause is a prerequisite to raising a claim of ineffective assistance. (Richardson, supra, 156 Cal.App.4th at p. 596 ["we are without power to address defendant's ineffective assistance of counsel claim in the absence of a certificate of probable cause"].)
Defendant attempts to distinguish Richardson, noting there the suppression motion could not have been renewed as Richardson had pleaded guilty before the magistrate just after the denial of his suppression motion. But that distinction does not alter the fact that here, as in Richardson, the claimed ineffective assistance occurred before the plea, and thus a certificate of probable cause is required. (See Richardson, supra, 156 Cal.App.4th at p. 596 ["if his trial counsel erred in failing to preserve the search and seizure issue for appellate review, that error clearly did not occur in 'proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed' "].)
Accordingly, here, we cannot address defendant's claim of ineffective assistance because he failed to obtain a certificate of probable cause. (See Richardson, supra, 156 Cal.App.4th at p. 596.) He may, however, pursue his claim through a petition for writ of habeas corpus. We, therefore, reject his challenge without prejudice to his raising the claim by habeas petition.
Defendant also maintains his suppression motion was in fact brought before the superior court because the magistrate held him to answer several days before ruling on the suppression motion. Defendant is mistaken. At the conclusion of the hearing's testimony, the court did not make a ruling, though it indicated it thought sufficient evidence had been presented for the purposes of preliminary hearing—adding, "I'll certainly hear argument." Several weeks later, the court held defendant to answer, after it denied the suppression motion.
2.0 Defendant's Challenge to the Penalty Assessments
Defendant next contends the trial court erred in adding penalty assessments to a lab fee (§ 11372.5) and a drug program fee (§ 11372.7) imposed at sentencing. In short, he argues the lab and drug program fees are nonpunitive fees, not subject to penalty assessments—rather than "fines," which are subject to assessments.
As defendant concedes in his reply, this issue has been resolved by our Supreme Court. Both the lab and drug program fees are fines subject to penalty assessments. (See People v. Ruiz (2018) 4 Cal.5th 1100, 1103.) The challenge accordingly fails.
The People maintain this contention is forfeited for failure to object below. We disagree. Though defendant did not object below, on appeal he challenged the assessments as unauthorized, and did so before Ruiz was decided. (See Ruiz, supra, 4 Cal.5th at p. 1104, fn. 2 ["because defendant contends the fees are 'unauthorized'—i.e., as a matter of law, they may not be imposed for his conspiracy conviction—his failure to object below does not constitute a forfeiture"].) --------
DISPOSITION
The judgment is affirmed without prejudice to defendant challenging the denial of his suppression motion based on ineffective assistance of counsel by way of a petition for writ of habeas corpus.
BUTZ, J. We concur: BLEASE, Acting P. J. DUARTE, J.