Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCR-481658
Swager, J.
Defendant appeals from a judgment following his plea of guilty. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel has advised defendant that he can file a supplemental brief raising additional points he would like to call to our attention. He has not done so. Upon independent review of the record, we conclude that no arguable issues are presented for review, and affirm the judgment.
Statement of Facts and Procedural History
A felony complaint was filed on February 9, 2006, charging defendant with one count of possession of cocaine (Health & Saf. Code, § 11350 subd. (a)), and in count two with possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)). On June 28, 2006, defendant filed a motion pursuant to Penal Code section 1538.5 to suppress evidence on the ground that he was the subject of an unlawful detention and search. The hearing on this motion was heard simultaneously with a preliminary hearing on April 27, 2007. Following the receipt of evidence and argument, the court denied the motion to suppress and found sufficient cause to hold defendant to answer on the charges set forth in the complaint. Pursuant to agreement, the complaint was deemed to be the information filed in the case, “proper arraignment” was stipulated to and defendant entered a plea of not guilty.
On May 2, 2007, defendant entered a plea of guilty to Health and Safety Code section 11350, subdivision (a) and the misdemeanor count was dismissed. Defendant was placed on a grant of probation pursuant to the provisions of Penal Code section 1210 for 36 months subject to various terms and conditions including the payment of fines and fees. This appeal followed challenging the denial of the motion to suppress.
The incident giving rise to the charges against defendant occurred on February 1, 2006. At approximately 3:20 pm, Deputy Reese of the Sonoma County Sheriff’s Department was dispatched to the 900 block of Hunter Lane in the City of Santa Rosa regarding a suspicious vehicle that had been reported in the area. Deputy Reese observed a car matching the description given to him and motioned with his hand for the vehicle to pull over. The deputy contacted defendant who was driving the vehicle and was advised by defendant that he was lost and looking for a friend’s house. The deputy observed that defendant was not wearing a shirt despite the cold and wet weather. When defendant moved his vehicle at the deputy’s request so that it would not be blocking traffic, the deputy observed that the vehicle did not have a rear license plate.
When the deputy again approached the car, he observed that defendant was not wearing shoes or socks, his pants were unzipped and unbuttoned, and his feet were muddy. Defendant also appeared to be breathing fast, and his heart was beating visibly from his chest. The deputy detected an odor that smelled like urine and feces emanating from inside the vehicle. The officer drew his weapon for officer safety after defendant failed to comply with an order to remove his hands from a brief case. The deputy placed defendant in the rear of his patrol car and then observed what appeared to be a glass smoking pipe on top of clothing in the rear of defendant’s vehicle. Next to the pipe was a “small off-white, rock like substance” that subsequent analysis determined to be 0.88 gram of cocaine.
Discussion
Our review of the record before us does not show that defendant renewed or made a new motion to suppress evidence in the superior court. Penal Code 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.” Subdivision (m) adds a critical caveat to the provision for appellate review, however, by specifying, such “ ‘[r]eview 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.’ ” (People v. Hunter (2002) 100 Cal.App.4th 37, 41, first italics omitted; see also People v. Hobbs (1994) 7 Cal.4th 948, 956.) Thus, to preserve a search and seizure issue on appeal, it is not enough to raise it before the magistrate; instead, the defendant must make a motion in superior court pursuant to Penal Code section 1538.5 or section 995. (People v. Lilienthal (1978) 22 Cal.3d 891, 896 (Lilienthal); People v. Gutierrez (2004) 124 Cal.App.4th 1481, 1484–1485; People v. Callahan (1997) 54 Cal.App.4th 1419, 1423; People v. Burns (1993) 20 Cal.App.4th 1266, 1272.) Defendant’s “failure to renew his challenge in the superior court precludes appellate review of his claim of error because ‘. . . it would be wholly inappropriate to reverse a superior court’s judgment for error it did not commit and that was never called to its attention.’ [Citation.]” (People v. Terrell (1999) 69 Cal.App.4th 1246, 1252.)
“The unification of the municipal and superior courts has not abrogated the need for a renewal of a motion to suppress evidence following certification of a case to the superior court. [Citations.] Lilienthal continues to apply postunification because the California Constitution, article VI, section 23, subdivision (c), which created the unified court system, specifically provides for superior court review of preliminary hearing suppression motions. [Citation.] The rationale for continuing to apply Lilienthal after unification is based on the distinct roles assigned to the magistrate and the superior court.” (People v. Garrido (2005) 127 Cal.App.4th 359, 364.) In view of this established authority, we are precluded from reviewing the denial of the suppression motion.
The defendant was represented by counsel at all stages of the proceedings and knowingly and intelligently waived his constitutional rights prior to entering his plea of guilty. There are no sentencing errors.
After a full review of the record, we find no arguable issues and, accordingly, affirm the order.
We concur: Stein, Acting P. J., Margulies, J.