Opinion
C089249
06-24-2020
THE PEOPLE, Plaintiff and Respondent, v. PETR KOSTYUKOV, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18FE012396)
Appointed counsel for defendant Petr Kostyukov filed an opening brief setting forth the facts of the case and asking this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After reviewing the entire record, we affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
BACKGROUND
In the early morning hours of May 10, 2018, Sacramento County Sheriff's Deputy Gene Goff responded to a domestic disturbance call at defendant's apartment. When Goff arrived, defendant was holding M.N. against the wall. Goff handcuffed defendant and defendant said M.N. had threatened him with a knife. Defendant offered to show the deputy a video of the attack on his cell phone. Defendant gave Goff his phone and the password; Goff watched the video. Goff then requested backup to take M.N. into custody.
Deputy Levi Coonce arrived shortly thereafter. Coonce placed the handcuffed M.N. into the back of a patrol car. After being advised of her Miranda rights, M.N. told Coonce defendant had firearms, including an AK-47 and an AR-15, in the garage. She told the deputies the guns could be in a cabinet or in the trunk of defendant's car. M.N. also told the deputies she did not have access to the guns. The garage is not accessible from the apartment and there was no property belonging to M.N. in the garage.
The deputies searched the garage and, using a key they found on defendant, they opened a cabinet. Inside the cabinet, they found seven firearms, ammunition, and high capacity magazines. After the guns were found in the garage, the deputies conducted a probation search of the apartment pursuant to M.N.'s search condition. In the bedroom defendant and M.N. shared, the deputies found a loaded .44-caliber revolver between the box spring and mattress. They also found a bullet in a storage container.
The People subsequently charged defendant with eight counts of being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)—counts one through eight) and a single count of being a felon in possession of ammunition (Pen. Code, § 30305, subd. (a)(1)—count nine). The People further alleged defendant was previously convicted of a strike offense within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12.
Defendant filed a motion to suppress pursuant to Penal Code section 1538.5. The trial court granted the motion to suppress as to everything the deputies discovered in defendant's garage, but admitted the evidence found in the residence defendant shared with M.N. The People moved to dismiss counts one through three and five through eight.
Defendant subsequently waived his constitutional rights, pleaded no contest to count four, and admitted the strike allegation. The People moved to dismiss count nine. The trial court sentenced defendant to an aggregate term of four years in state prison, and awarded him 537 days of custody credit. The court also imposed a $300 restitution fine, $300 parole revocation fine (stayed), $40 court security fee, and a $30 conviction assessment.
Defendant filed a notice of appeal but did not obtain a certificate of probable cause.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.)
Defendant filed a supplemental brief claiming the trial court erred in denying his motion to suppress as it related to his residence. He makes two arguments: (1) the People failed to prove M.N. lived with defendant in the residence, and (2) the People failed to prove law enforcement knew M.N. was subject to search as a condition of her probation at the time they searched the residence. Defendant did not raise either of these arguments in the trial court. Notably, in their brief in opposition to the motion to suppress, the People said: "Here it is uncontroverted that [M.N.] is the fiancé of the defendant and that she lives with him. The defendant's own statement corroborates that fact." Defendant did not challenge that assertion in the trial court.
Having failed to raise these claims in the trial court, defendant has forfeited his right to raise them on appeal. (See People v. Williams (1999) 20 Cal.4th 119, 129-131 [defendants must specify the precise grounds for their motion to suppress, they cannot "lay a trap for the prosecution by remaining completely silent until the appeal about issues the prosecution may have overlooked"].)
We have reviewed the record on appeal for any arguable issues. Defendant was sentenced after his guilty plea and did not obtain a certificate of probable cause. Any issues as to the validity of his plea are not before us. (Pen. Code, § 1237.5.) Before entering his no contest plea, defendant was advised of his rights, understood his rights, and freely and intelligently waived them in entering his no contest plea. Defense counsel stipulated to a factual basis for the plea. We conclude there are no arguable issues within the meaning of People v. Wende, supra, 25 Cal.3d 436.
DISPOSITION
The judgment is affirmed.
/s/_________
RAYE, P. J. We concur: /s/_________
BLEASE, J. /s/_________
MAURO, J.
Miranda v. Arizona (1966) 384 U.S. 436 694.