Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07907976, Robert H. Oliver, Judge.
Francine R. Tone, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Gomes, J. and Hill, J.
STATEMENT OF THE CASE
Appellant filed a suppression motion pursuant to Penal Code section 1538.5 on November 26, 2007. The trial court heard argument on the motion on December 3, 2007, and denied the motion the next day. On December 4, 2007, the prosecution filed a first amended complaint which charged appellant with possession of cocaine for sale (Health & Saf. Code, § 11351; count three), possession of heroin for sale (Health & Saf. Code, § 11351; count four), transporting cocaine for sale (Health & Saf. Code, § 11352, subd. (a); count five), and transporting heroin for sale (Health & Saf. Code, § 11352, subd. (a); count six). The amended complaint further alleged that appellant suffered a prior serious felony conviction pursuant to Penal code section 667, subdivisions (b)-(i) and section 1170.12, subdivisions (a)-(d) and served two prior prison terms pursuant to section 667.5. On the same day, appellant pled no contest to counts three through six and admitted the prior strike. No information was ever filed.
All statutory references will be to the Penal Code unless otherwise specified.
Appellant was sentenced on January 3, 2008, by the same judge who heard appellant’s section 1538.5 motion to suppress and took his plea. Appellant moved to strike the prior strike and the court granted the motion as to counts four through six. The court sentenced appellant to four years on count three which was double the lower term because of the prior strike (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), three years on counts five and six and two years on count four. The court stayed the sentence on counts four through six pursuant to section 654.
On January 3, 2008, appellant filed a notice of appeal. On July 9, 2008, respondent moved to dismiss.
FACTS
I. Search
On October 11, 2007, Fresno Police Officers Becerra and Cervantes were conducting an undercover surveillance operation at the 3200 block of West Jensen Street in Fresno. The operation was pursuant to information the police had obtained from a confidential reliable informant regarding heroin dealings at the West Jensen location. The informant also identified vehicles used by the drug dealers: a Jeep Cherokee and a white Oldsmobile.
Officers observed a white Oldsmobile leave the 3200 block of West Jensen and park next to a black truck in a parking lot. The officer noted that the car and truck were parked in an area of the parking lot where there were no marked parking stalls. The person sitting in the black truck was identified as appellant. Appellant exited the black truck, walked over to the Oldsmobile and got in for about two minutes. Officer Becerra observed appellant exit the Oldsmobile and return to his truck while carrying something concealed under his shirt. Appellant then left the parking lot.
Officer Cervantes followed appellant as he left the parking lot and tailed appellant to a cul-de-sac in a residential neighborhood in southwest Fresno. Officer Cervantes requested a marked patrol car come to the cul-de-sac and initiated a traffic stop. By the time the patrol car arrived and activated its lights, appellant had already exited his vehicle. Officer Cervantes instructed the patrol officer to arrest appellant. Following the arrest, appellant’s car was searched and bindles of heroin and cocaine and a bag of marijuana were recovered.
II. Suppression Motion
Appellant argued that the traffic stop of appellant’s vehicle was unlawful as there was no evidence to create a reasonable suspicion that appellant was engaged in criminal activity. Consequently, the police lacked probable cause to arrest him and therefore the subsequent search of his car without a warrant was unlawful since the arrest was unlawful.
The trial court, examining the totality of the circumstances, found there was probable cause for the arrest and therefore denied the motion to suppress. Appellant thereafter pled no contest to the charges against him. He did not renew the motion in the superior court.
DISCUSSION
Appellant argues that the warrantless search of his car was unlawful. Respondent contends that after the trial court denied the motion to suppress, appellant failed to request that the ruling be reviewed by another superior court judge. As a result, the issue is barred by the ruling in People v. Lilienthal (1978) 22 Cal.3d 891 (Lilienthal).
In Lilienthal, the California Supreme Court held that although the defendant had moved to suppress evidence at the preliminary hearing as required by section 1538.5, subdivision (m) to preserve review on appeal, the defendant could not bypass raising the issue in the superior court. (Lilienthal, supra, 22 Cal.3d at pp. 895-896.) Lilienthal required that a defendant raise the issue before the trial court because it believed “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.” (Id. at p. 896.)
Appellant does not deny that Lilienthal is controlling in the present case and concedes that the issue was not preserved for appeal as required by Lilienthal. However, citing People v. Richardson (2007) 156 Cal.App.4th 574 (Richardson), appellant contends that because he entered a no contest plea before the same judge that ruled on his suppression motion, the procedural limitations of Lilienthal prevented him from preserving the issue for appeal. Appellant therefore requests that, despite failing to comply with the requirements of Lilienthal, we exercise our discretion and reach the merits of the issue. We decline to do so and will dismiss the appeal.
Richardson is directly on point in this case and does not help appellant. Richardson clearly delineates the courses of action open to a defendant after denial of a suppression motion. “[U]unless we recognize an exception to the Lilienthal rule in cases involving a guilty plea under section 859a, a defendant must choose between pleading guilty under section 859a on the one hand and preserving his or her right to appellate review of a search and seizure issue on the other. The question is whether there is any sound basis for recognizing such an exception.” (Richardson, supra, 156 Cal.App.4th at pp. 593-594.) As was the case in Richardson, appellant offers no basis for us to carve out an exception.
We strictly construe the requirements set forth in Lilienthal and the Penal Code. Section 1538.5, subdivision (m) states that a motion to suppress evidence constitutes the sole remedy for the reasonableness of a search and seizure. In order to seek further review of the issue on appeal a defendant must, prior to conviction, raise the issue in the superior court at some point during the proceedings. We construe this to mean that, following the denial of a suppression motion, a defendant must raise the issue again prior to conviction in order to preserve the issue on appeal.
Appellant’s failure to follow Lilienthal and statutorily prescribed procedures is fatal to appellate review of his challenge to the ruling on his suppression motion.
DISPOSITION
The appeal is dismissed without prejudice to any rights appellant may have to relief by way of a petition for writ of habeas corpus.