Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. 30307, Robert Quall and Brian L. McCabe, Judges, Ralph J. Cook, Commissioner.
Judge Quall presided over appellant’s preliminary hearing and ruled on his suppression motion. Judge McCabe accepted appellant’s no contest plea. Appellant was sentenced by Commissioner Cook.
Richard L. Fitzer, 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, Michael A. Canzoneri and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J., and Kane, J.
INTRODUCTION
On March 7, 2006, appellant, Jason Howard Tull, was charged in a complaint with two felony narcotics allegations and three misdemeanor allegations. The complaint further alleged a prior serious felony conviction within the meaning of the three strikes law (Pen. Code § 1170.12, subd. (c)(1)). A preliminary hearing and suppression motion were heard on the eleventh and eighteenth of October 2006. The court denied appellant’s suppression motion and held him to answer on counts one and two.
Unless otherwise indicated, all statutory references are to the Penal Code.
Although the court stated it was taking the matter under submission, it apparently denied the suppression motion in holding appellant to answer.
On October 24, 2006, an information was filed charging appellant with felony transportation of a controlled substance (Health & Saf. Code, § 11379, count one), felony possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a), count two), felony possession of methamphetamine (Health & Saf. Code, 11377, subd. (a), count three), misdemeanor battery of a peace officer (§ 243, subd. (b), count four), misdemeanor resisting arrest (§ 148, subd. (a), count five), and misdemeanor destruction or concealment of evidence (§ 135, count six). The information alleged a prior prison term enhancement (§ 667.5, subd. (b)) and that appellant had a prior serious felony conviction within the meaning of the three strikes law. On November 29, 2006, appellant was arraigned on the information, entering a not guilty plea.
On September 10, 2007, appellant entered into a plea agreement and executed an advisement of rights, waiver, and plea form for felonies. In exchange for admitting counts one and four and accepting a stipulated three-year midterm on count one, the remaining allegations would be dismissed. The trial court advised appellant of the consequences of his plea and his constitutional rights pursuant to Boykin/Tahl. Appellant pled no contest to felony transportation of narcotics and misdemeanor battery of a peace officer. On November 16, 2007, the trial court sentenced appellant to the stipulated midterm of three years. The court imposed a restitution fine and granted 314 days of custody credits.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
Appellant contends the seizure of narcotics from his person during arrest violated the due process clause. Alternatively, appellant argues his counsel’s cross-examination of the arresting officer was improperly limited by the court. Respondent contends appellant failed to preserve the issue on appeal because of his failure to renew the suppression motion to the superior court as required by People v. Lilienthal (1978) 22 Cal.3d 891, 896-897 (Lilienthal).
FACTS
On March 5, 2006, at about 1:21 a.m., Gustine Police Officer Miguel Villalobos saw appellant fail to stop his vehicle at a stop sign at the limit line. Villalobos pulled behind appellant and activated his patrol car lights. Appellant stopped after traveling about 250 yards. Villalobos recognized appellant and confirmed that he was still on active parole.
Villalobos conducted a parole search. After patting appellant down, Villalobos searched a fanny pack appellant was wearing around his waist. Villalobos found a canister with hashish, an oil based cannabis, and three metal pipes with what appeared to be marijuana residue. Villalobos placed appellant under arrest and placed him in the back seat of the patrol car with appellant handcuffed with his hands behind his back.
Villalobos suspected appellant might have something in his mouth and told appellant to stick out his tongue. Instead, appellant began to roll his tongue around. Villalobos ordered appellant in a loud voice to spit out whatever he had in his mouth. Appellant kept chewing.
Villalobos grabbed appellant by his collar and pulled him out of the car to ascertain what was in appellant’s mouth. As Villalobos pulled appellant from the car, appellant kicked Villalobos on the left side of his face. Villalobos pushed appellant to the ground, telling appellant to spit out what was in his mouth. Appellant continued chewing and kicking with his feet. Villalobos placed his hand at the base of appellant’s neck. This occurred within five seconds after Villalobos pulled appellant from the car.
At this moment, Villalobos was unaware that Corporal Elness had applied his tazer on appellant. The tazer was applied because appellant was resisting arrest, not to remove the object appellant was chewing from his mouth. Appellant spit out a plastic white bindle that appeared to be a usable amount of a controlled substance. The bindle contained 1.49 grams of methamphetamine.
DISCUSSION
Appellant contends the seizure of narcotics from his mouth was achieved by a degree of force that shocks the conscience and therefore violated his due process rights. Respondent argues that appellant failed to raise this issue in superior court after it was heard by the magistrate and the issue is, therefore, barred by the Lilienthal doctrine. We agree with respondent and will affirm the judgment.
In Lilienthal, the defendant moved to suppress evidence during a preliminary hearing. The motion was denied and the defendant failed to raise the issue again in superior court. Lilienthal reasoned that although the defendant had raised the issue during the proceedings as required by section 1538.5, subdivision (m), the defendant could not bypass raising the issue in the superior court to preserve review on appeal. (Lilienthal, supra, 22 Cal.3d at pp. 895-896.)
Contrary to appellant’s argument in his reply brief, the unification of municipal and superior courts has not abrogated the need for the renewal of suppression motions following certification of a case to superior court. (People v. Garrido (2005) 127 Cal.App.4th 359, 364 (Garrido); People v. Hinds (2003) 108 Cal.App.4th 897, 900; People v. Hoffman (2001) 88 Cal.App.4th 1, 2-3 (Hoffman).) The Lilienthal rule continues to apply to postunification causes because the California Constitution, article VI, section 23, subdivision (c), which created court unification, specifically provides for superior court review of preliminary hearing suppression motions. (Garrido, supra, 127 Cal.App.4th at p. 364; Hoffman, supra, 88 Cal.App.4th at p. 3.)
Garrido noted the Legislature added section 859c and Government Code section 70212, subdivisions (e) and (f) in response to court consolidation. These statutes require that any matter heard by a judge or magistrate which is subject to rehearing, must be heard by a superior court judge other than the judge who originally heard the matter.
Section 859c provides: “Procedures under this code that provide for superior court review of a challenged ruling or order made by a superior court judge or a magistrate shall be performed by a superior court judge other than the judge or magistrate who originally made the ruling or order, unless agreed to by the parties.”
Subdivision (e) of Government Code section 70212 provides: “Matters of a type previously subject to rehearing by a superior court judge remain subject to rehearing by a superior court judge, other than the judge who originally heard the matter.”
Judge Quall presided over appellant’s preliminary hearing and ruled on the suppression motion. The case proceeded for nearly a year before appellant entered into a plea agreement before Judge McCabe. Prior to entering into the plea agreement, appellant had to renew his suppression motion to a new judge in superior court. He failed to do so and is now barred under the Lilienthal rule from raising this issue on appeal. Court consolidation did not change this procedural requirement, which has been preserved by constitutional and statutory enactments. Because appellant failed to preserve any issue concerning the validity of the seizure for appellate review, we do not reach the merits of appellant’s contentions.
DISPOSITION
The judgment is affirmed.
Subdivision (f) of Government Code section 70212 states: “Penal Code procedures that necessitate superior court review of, or action based on, a ruling or order by a municipal court judge shall be performed by a superior court judge other than the judge who originally made the ruling or order.”