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The People v. Dmitriy Kosovski

April 18, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DMITRIY KOSOVSKI, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F03469)

The opinion of the court was delivered by: Robie , Acting P. J.

P. v. Kosovski

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After the superior court judge, sitting as a magistrate, denied his motion to suppress, heard at the same time as the preliminary examination, defendant Dmitriy Kosovski pled no contest before the magistrate to possession of methamphetamine. The court then placed him on five years of probation with 270 days in jail.

On appeal, defendant contends the magistrate erred in denying his suppression motion because the sheriff's deputy who arrested him for public intoxication lacked probable cause for the arrest because defendant was not in a public place when he was arrested.

We cannot reach the merits of the suppression motion because defendant pled no contest before the magistrate. (People v. Richardson (2007) 156 Cal.App.4th 574.)

Recognizing that trial counsel "neglected to preserve that issue [i.e., the ruling on the suppression motion] for appeal," defendant also raises an ineffective assistance of counsel argument. We cannot review the ineffective assistance of counsel claim either 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

On May 24, 2010, defendant was arrested by the Sacramento County Sheriff's Department for being drunk in public. Following a routine booking search, sheriff's deputies found crystal methamphetamine. Two days later, defendant was charged by complaint with felony possession of methamphetamine with a strike prior.

Before the preliminary examination, defendant filed a motion to suppress on the ground the arresting deputy lacked an arrest warrant. On July 14, 2010, the day set for the preliminary examination, Judge Sharon Lueras -- sitting as a magistrate -- heard the motion to suppress. After reasoning that "common sense" would warrant the deputy doing "exactly what [she] should have done and that was, arrest [defendant]," the magistrate decided that the arrest was lawful and denied the motion. At the same time the magistrate held defendant to answer and deemed the complaint an information. Defense counsel then announced, "Your Honor, we might have a resolution in this case. [¶] Can I just speak with my client? [¶] . . . [¶] There is a resolution in this case." At that point, the prosecutor announced that the plea would be "as a felony for 270 days and . . . strike the strike that is alleged."

Defendant pled no contest to possession of methamphetamine in exchange for a grant of probation with 270 days in jail. In return, the strike prior was dismissed.

Defendant filed a notice of appeal based on the denial of his suppression motion. He did not obtain a ...


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