Opinion
A166865
10-31-2023
THE PEOPLE, Plaintiff and Respondent, v. JORGE ABEL GREGIRI MARTINEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. 22CR02117
Petrou, J.
The Mendocino County District Attorney filed a complaint charging Jorge Abel Gregiri Martinez with three felony offenses: (1) possession of a controlled substance while armed with a loaded and operable firearm (Health & Saf. Code, § 11370.1) (count one); (2) possession of a loaded firearm by a convicted felon (Pen. Code, § 29800, subd. (a)(1)) (count two); and (3) infliction of corporal injury on B.M., an alleged domestic partner (count three). (§ 273.5, subd. (a)). A special allegation was included alleging Martinez had sustained a prior strike conviction for second-degree robbery (§§ 211, 212.5, subd. (c); 667 and 1170.12).
All further statutory references are to the Penal Code.
We use initials to protect the victim's privacy interests. (Cal. Rules of Court, rule 8.90(b)(4).)
The magistrate held a combined preliminary hearing and hearing on Martinez's section 1538.5 motion to suppress evidence. The motion to suppress was brought on the basis that evidence in support of counts one and two was obtained in violation of his Fourth Amendment rights as Martinez contends it was illegally seized after a warrantless entry and search of his residence. The magistrate found probable cause to hold Martinez on the three felony charges in the complaint and denied the motion to suppress evidence. Following the preliminary hearing, an amended information was filed charging the same three felony offenses for which the magistrate found probable cause, and the same prior strike allegation.
To preserve direct appellate review of the denial of the motion to suppress evidence made at the preliminary hearing, Martinez was required to either file a renewed motion to suppress (§ 1538.5) or a motion to set aside the information for lack of probable cause (§ 995). (See People v. Torres (2010) 188 Cal.App.4th 775, 783.) Martinez made a section 995 motion, which was set for a hearing on November 22, 2022.
The transcript of the hearing on November 22, 2022 does not reflect any discussion or ruling on the section 995 motion. Instead, on that date, what occurred was a change of plea proceeding. In accordance with a negotiated plea, Martinez agreed to a further amendment of the information to include, as count four, a misdemeanor offense of battery committed against B.M. (§ 242). He also agreed to plead no contest to count one (possession of a controlled substance while armed with a loaded, operable firearm) and count four (misdemeanor battery), and to admit the prior strike conviction. In exchange, the court would sentence him to an aggregate term of four years (the low term of two years on count one, doubled for the prior strike allegation) with the remaining counts dismissed; no promise was made as to the sentence to be imposed on count four. The court sentenced Martinez as agreed on count one and the prior strike allegation and imposed a concurrent term of six months on count four.
Martinez filed a notice of appeal based solely on the denial of his motion to suppress. Appellate counsel has filed a brief asking us to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 to determine whether there are any arguable issues on appeal. In that brief, counsel contends the appeal is authorized under section 1538.5, subdivision (m), but fails to mention that a section 995 motion was made and does not contend a ruling was obtained on that motion. Appellate counsel averred Martinez was advised of his right to file a supplemental brief, but he has not filed such a brief.
Since no ruling was made on the section 995 motion, the issue is not preserved for our review. (People v. Lilienthal (1978) 22 Cal.3d 891, 897 [a challenge to a ruling on a § 995 motion brought to review the magistrate's ruling on a motion to suppress at the preliminary hearing is reviewable on appeal following defendant's guilty plea under § 1538.5, subd. (m)].) Having independently reviewed the record, we conclude there are no other issues that require further briefing on appeal.
We express no opinion regarding the advisability of Martinez seeking review of the suppression issue by the filing of a petition for a writ of habeas corpus.
Disposition
The judgment is affirmed.
WE CONCUR: Tucher, P.J. Rodriguez, J.