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The People v. Jerry Wayne Calvery

January 28, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JERRY WAYNE CALVERY, DEFENDANT AND APPELLANT.



Super. Ct. No. 08-2028

The opinion of the court was delivered by: Nicholson , J.

P. v. Calvery CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Jerry Wayne Calvery entered a negotiated plea of guilty to child endangerment, possession of marijuana for sale, possession of methamphetamine for sale, and possession of a silencer, and admitted arming allegations, on-bail allegations, and an excess quantity of methamphetamine allegation, in exchange for dismissal of the remaining counts and allegations and another case (case No. 09-1659), and the return of certain property which had been seized.

Sentenced to state prison, defendant appeals. He contends (1) the trial court erroneously denied his motion to suppress and (2) he is entitled to additional presentence custody credits. We order the judgment modified to include additional presentence custody credits. We reject defendant's other contention.

FACTS

On December l7, 2008, law enforcement officers executed a search warrant at a residence on Rocky Gulch Road in Siskiyou County. The search revealed 44.95 pounds of marijuana, 9.06 grams of concentrated marijuana, 22.75 grams of methamphetamine, $26,411 in cash, and 39 firearms. Five adults, including defendant, were arrested. An eight-year-old girl who lived at the residence had access to the drugs and firearms.

On March 13, 2009, law enforcement officers executed a second search warrant at the same residence and seized about one-third pound of methamphetamine and .20 grams of concentrated cannabis. Search of a storage unit pursuant to yet another warrant revealed 15 firearms and a silencer.

DISCUSSION

I

Defendant first contends that the "trial court" erroneously denied his motion to suppress and asks that this court review the search warrant and sealed affidavit to determine whether the trial court's probable cause determination is supported by the facts. Based on People v. Lilienthal (1978) 22 Cal.3d 891 (Lilienthal), we conclude that defendant has failed to preserve the issue because he did not raise the issue before a superior court judge. Appellate review under Penal Code section 1538.5, subdivision (m), is thus barred.

Background

On December 19, 2008, a felony ...


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