Opinion
H045143
03-21-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL TROY MALONE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Benito County Super. Ct. No. CR1601189)
Defendant Michael Troy Malone was charged by information with 24 counts: two counts of torture (Pen. Code, § 206); two counts of assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)); two counts of assault with a firearm (§ 245, subd. (a)(2)); two counts of domestic violence (§ 273.5); two counts of false imprisonment (§ 236); two counts of criminal threats (§ 422); two counts of child endangerment (§ 273a, subd. (a)); forcible oral copulation (§ 288a, subd. (c)(2)(A)); three counts of rape (§ 261, subd. (a)(2)); three counts of attempting to dissuade a witness (§ 136.1, subd. (b)(2)); and three counts of violating a restraining order (§ 273.6, subd. (a)). It was also alleged that defendant personally used a firearm (§ 12022.5) and personally inflicted great bodily injury (§ 12022.7) for many of the counts. Defendant brought a motion to suppress evidence, which was denied.
All further statutory references are to the Penal Code. --------
Though appointed appellate counsel noted that the charges had not yet been adjudicated, he filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436. This brief summarizes the case and the facts, but raises no issues.
This court requested supplemental briefing on whether we had jurisdiction to consider an appeal from an order denying a motion to suppress evidence when there has been no adjudication of the charges. The parties agree that this court has no jurisdiction to consider the appeal. " 'It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.' [Citations.]" (People v. Mazurette (2001) 24 Cal.4th 789, 792.) Section 1538.5, subdivision (m) 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." (§ 1538.5, subd. (m), italics added.) Accordingly, the appeal is dismissed
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Greenwood, J.