Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F08808
OPINION
ROBIE, J.
After officers from the sheriff’s department found a gun in his car during a search, defendant David Walton was charged with, among other things, possession of a firearm by a felon. Defendant moved to suppress the gun, and the magistrate denied the motion. Instead of going forward with the preliminary hearing, defendant pled no contest to the possession charge and admitted a prior strike conviction. The court dismissed the other charges and sentenced him to 32 months in state prison.
On appeal, defendant contends the magistrate erred in denying his suppression motion. In the alternative, defendant contends his trial attorney misadvised him about his right to appeal the suppression motion, resulting in ineffective assistance of counsel.
We cannot reach the merits of the suppression motion because defendant pled no contest before the magistrate. Also, we cannot review the ineffective assistance of counsel claim because it is outside the scope of reviewable issues on appeal from a conviction following a plea of no contest without a certificate of probable cause. Thus, we will dismiss the appeal without prejudice to any rights defendant may have by way of a petition for writ of habeas corpus.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2007, officers from the Sacramento County Sheriff’s Department saw defendant drive away from a house where they believed a bank robber was staying. They wanted to determine defendant’s relationship to the people in the house. The officers followed defendant and stopped him for speeding as he drove away.
After stopping, defendant provided one officer with an expired temporary driver’s license. He had no other form of identification. After placing defendant in the patrol car, the officer ran a records check of the driver’s license. The officer learned that defendant’s driver’s license was suspended. Defendant was arrested for driving with a suspended license and his car was searched because it was going to be towed. In searching inside the car, the officers found a gun where the steering column meets the dashboard.
Defendant was charged with three counts: (1) possession of a firearm by a felon; (2) carrying a concealable firearm; and (3) carrying a loaded firearm in public. Defendant moved to suppress the gun. Judge Harry Papadakis, sitting as a magistrate, denied the motion. Before the preliminary hearing began, defendant pled no contest to possession of a firearm by a felon and admitted a prior strike conviction. In return, the remaining charges were dropped.
After his plea, defendant moved for reconsideration of the magistrate’s ruling. In the motion, defendant’s counsel admitted misadvising defendant about his ability to appeal the suppression motion after the plea and asserted that defendant pled no contest in reliance on this advice. Judge Papadakis denied defendant’s motion for reconsideration and, sitting as a superior court judge, sentenced him to 32 months in prison.
Defendant filed a notice of appeal based on the denial of his suppression motion. He did not obtain a certificate of probable cause.
DISCUSSION
I
Appellate Review Of The Denial Of The Motion To Suppress
Defendant contends the magistrate erred in denying his motion to suppress the gun because the search violated the Fourth Amendment. Before we address that issue, we must first determine whether the ruling is appealable.
As the People correctly point out, our decision in People v. Richardson (2007) 156 Cal.App.4th 574, governs this case. “Only if the defendant raised the search and seizure issue in the superior court--i.e., at some point after the preliminary proceedings before the magistrate--could the defendant be deemed to have raised that issue ‘at some stage of the proceedings prior to conviction’ as required for appellate review of the issue under [Penal Code section 1538.5[, subdivision (m)].” (Id. .at pp. 584-585.) Under Richardson, “a defendant who has pled guilty before a magistrate following the magistrate’s denial of his or her suppression motion cannot raise the search and seizure issue again in the superior court. Thus . . . if a defendant who has lost a suppression motion before a magistrate wants to pursue appellate review of the search and seizure issue, he or she cannot plead guilty in front of the magistrate. Instead, he or she must proceed with the preliminary hearing (or waive his or her right to a preliminary hearing) and, after being held to answer, allow an information to be filed (or allow the complaint to be deemed an information). Then, he or she can either move to dismiss the information under section 995 or renew his or her suppression motion before trial under subdivision (i) of section 1538.5 and withhold his or her guilty plea until after his or her motion is denied a second time by the superior court.” (Id. at p. 593.) Consequently, a defendant must choose between either: (1) pleading guilty or no contest before the magistrate; or (2) preserving his or her right to appellate review of the Fourth Amendment issue -- the defendant cannot do both. (Id. at pp. 593-594.)
All further statutory references are to the Penal Code unless otherwise indicated.
This case is indistinguishable from Richardson, where we dismissed the appeal. (People v. Richardson, supra,156 Cal.App.4th at p. 597.) Just as the defendant in Richardson pled guilty before a magistrate after that magistrate denied a suppression motion (Id. at pp. 581-582), here defendant pled no contest before a magistrate after the magistrate denied a suppression motion.
It makes no difference that the magistrate did not certify the case to himself before sentencing defendant. Just as the magistrate in Richardson did not certify the case to the superior court (People v. Richardson, supra,156 Cal.App.4th at p. 590), Judge Papadakis did not certify the case to the superior court either. Indeed, in Richardson we noted that if a superior court judge acted as the magistrate in the preliminary proceedings, it would be “pointless” to require the magistrate to certify the case to himself before proceeding. (Id. at p. 591.)
Defendant’s reliance on People v. Gutierrez (2004) 124 Cal.App.4th 1481 is misplaced. Defendant cites Gutierrez for the proposition that he is not procedurally barred from appealing the suppression ruling because “[i]t makes no sense to require defendant to make a motion in superior court when that court has already rejected defendant’s arguments in granting the prosecution’s section 871.5 motion.” (Id. at p. 1484.) Gutierrez is distinguishable because there the magistrate granted the defendant’s suppression motion before the People successfully moved to reinstate the felony complaint under section 871.5, one of the enumerated ways a suppression issue can be raised under section 1538.5, subdivision (m). (See Gutierrez, at p. 1483.) This case is different because, unlike in Gutierrez, the magistrate denied the suppression motion so the People never had the occasion to make a section 871.5 motion in the superior court.
Moreover, because a motion for reconsideration is not one of the limited, statutorily authorized ways to raise a suppression issue (see § 1538.5, subd. (m); People v. Richardson, supra, 156 Cal.App.4th at p. 591), defendant’s motion for reconsideration did not suffice to preserve it for appellate review. Accordingly, we cannot review the merits of the suppression motion.
II
Appellate Review Of Defendant’s
Ineffective Assistance Of Counsel Claim
In the alternative, defendant contends his trial attorney’s erroneous advice about the ability to appeal after pleading no contest was ineffective assistance of counsel. Because defendant made little effort in his brief to raise this as a separate issue, we could ignore it. We need not do so, however, because, in any event, we cannot address it for it is beyond the limited scope of reviewable issues on appeal from a conviction following a plea of no contest.
“Under section 1237.5, an appeal from a conviction predicated on a guilty plea requires a certificate of probable cause. ‘Notwithstanding the broad language of section 1237.5, it is settled that two types of issues may be raised in a guilty or nolo contendere plea appeal without issuance of a certificate: (1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.’” (People v. Richardson, supra, 156 Cal.App.4th at p. 596.)
Thus, absent a certificate of probable cause, we can address the ineffective assistance of counsel claim only if it pertains to “‘proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.’” (People v. Richardson, supra, 156 Cal.App.4th at p. 596.) Here, if defendant’s trial attorney erred in failing to preserve the Fourth Amendment issue for our review, it obviously did not happen “‘subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.’” (Ibid.) Rather, it happened before the plea. Consequently, defendant needed a certificate of probable cause for the ineffective assistance of counsel claim, which he does not have. Accordingly, we cannot address this claim. He must pursue this claim through a petition for writ of habeas corpus.
DISPOSITION
The appeal is dismissed without prejudice to any rights defendant may have by way of a petition for writ of habeas corpus.
We concur: SCOTLAND, P. J., BUTZ, J.