Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F. Fraser, Judge, No. SCD207015
McDONALD, J.
Defendant Hac Hong Tran was charged by information with the following crimes occurring on or about May 29, 2007: count 1, attempted murder in violation of Penal Code sections 187, subdivision (a), and 664, with the allegation the crime was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1); count 2, assault with a firearm in violation of section 245, subdivision (a)(2), with the allegation the crime was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1); and count 3, unlawful possession of a firearm in violation of section 12021, subdivision (e).
Statutory references are to the Penal Code.
The information also charged him with the following crimes occurring on or about June 4, 2007: count 4, carrying a loaded firearm in violation of section 12031, subdivision (a)(1); count 5, unlawful possession of a firearm in violation of section 12021, subdivision (e); and count 6, having a concealed firearm in a vehicle in violation of section 12025, subdivision (a)(1).
The preliminary hearing resulting in the filing of the information was held concurrently with Tran's motion to suppress evidence under section 1538.5. The motion to suppress evidence related solely to evidence obtained in connection with the June 4, 2007, offenses alleged in counts 4, 5 and 6. The trial court denied the suppression motion and bound Tran over for trial on all six counts. Tran then filed a second motion to suppress evidence under section 1538.5, subdivision (i), seeking a de novo review of the issue, and a Pitchess motion for discovery of the personnel file of the officer conducting the search subject to the suppression motion. The court denied the Pitchess motion after an in camera review of the officer's personnel file and denied the renewed motion to suppress evidence without considering evidence in addition to that produced at the preliminary hearing.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
On January 28, 2008, Tran entered a plea of guilty [or no contest] to count 1 (attempted murder) charged in the information and admitted the appended gang allegation. In exchange the People dismissed counts 2 through 6, and agreed to a stipulated sentence of nine years in prison and that no sentence would be imposed on the gang allegation appended to count 1. Tran's written guilty plea included a waiver of his right to appeal the denial of his section 1538.5 suppression motion. On June 20, 2008, Tran was sentenced to the stipulated term of nine years in prison. Tran timely filed a notice of appeal.
On appeal, Tran raises two issues: (1) the trial court abused its discretion by not conducting a de novo hearing in response to his second evidence suppression motion under section 1538.5, subdivision (i); and (2) this court should review de novo his Pitchess motion to discover information in the officer's personnel file.
The People respond with the assertion that the appeal should be dismissed because Tran waived his right to appeal denial of the section 1538.5 suppression motion, he did not obtain a certificate of probable cause under section 1237.5 and therefore may not appeal a prejudgment discovery ruling, and, in any event, the claimed errors relate only to dismissed charges (counts 4-6) and a ruling with regard to those counts would have no effect on the judgment entered in response to the guilty plea to count 1.
In a supplemental opening brief, Tran contends his waiver of the right to appeal the denial of his section 1538.5 motion was not knowing, intelligent and voluntary, and was therefore invalid.
DISCUSSION
The judgment in this case consists of a conviction on count 1 (attempted murder) for which Tran was sentenced to nine years in prison. The conviction resulted from Tran's plea of guilty, or no contest. In exchange for the guilty plea and stipulated sentence, counts 2 through 6 were dismissed. On appeal Tran does not challenge the conviction on count 1, the sentence or his guilty plea, or seek an order permitting withdrawal of his guilty plea. There is no appellate challenge to the judgment. Rather, Tran challenges only the trial court's resolution of his second section 1538.5 suppression motion and his Pitchess discovery motion, both of which related solely to counts 4, 5 and 6. On appeal, Tran requests this court remand the matter to the trial court to permit him to present additional evidence in support of his suppression motion and, after independent review of the Pitchess motion records, order the trial court to disclose information in those records.
Even were we to agree with Tran's appellate contentions and grant him the relief requested, our disposition would have no effect on the judgment in this case. Because this court, under the circumstances of this appeal, is not requested to, and cannot, grant relief that would in any way alter the judgment, we conclude the appeal is moot and order its dismissal.
DISPOSITION
The appeal is dismissed.
WE CONCUR: McCONNELL, P. J., IRION, J.