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The People v. Dmitriy Kosovski

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

DISCUSSION

I Appellate Review Of The Denial Of The Motion To Suppress

Defendant contends that Judge Lueras erred in denying his motion to suppress the methamphetamine because his arrest was unlawful. Before we address that issue, we must first determine whether the ruling is reviewable.

As the People correctly point out, our decision in People v. Richardson, supra, 156 Cal.App.4th at page 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[*fn1 ]] section 1538.5[, subdivision ](m)." (Richardson, 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. (Richardson, at pp. 593-594.)

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.

Relying on People v. Williams (1998) 17 Cal.4th 148, defendant argues this court has discretion to reach the merits of an issue not adequately preserved for review. His reliance on Williams is misplaced.

In Williams, the court was faced with deciding the Court of Appeal's authority to review a trial court's decision to dismiss a prior strike conviction "'in furtherance of justice.'" (People v. Williams, supra, 17 Cal.4th at p. 161.) Thus, in Williams the appellate court was reviewing a decision made by a superior court judge acting in that capacity (id. at p. 153), therefore reviewable by the appellate court. That is not the case here. Here, the suppression issue was never placed before a superior court judge acting in that capacity; it was decided by a magistrate. Under People v. Lilienthal (1978) 22 Cal.3d 891, 896-897, we cannot review a magistrate's ruling on a motion to suppress; we can review only a superior court's ruling. We are bound by Lilienthal. While we "generally" may not be precluded from reviewing an issue not properly preserved for review, Lilienthal created an exception to this general rule; in this particular circumstance, we are precluded.

II Appellate Review Of Defendant's

Ineffective Assistance Of Counsel Claim

Defendant contends his trial attorney's failure to renew the motion to suppress in superior court was ineffective assistance of counsel. This argument is unreviewable because it is beyond the limited issues that are reviewable on appeal from a conviction following a no contest plea without a certificate of probable cause.

"Under section 1237.5, an appeal from a conviction predicated on a [no contest 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.'" (Richardson, at p. 596.) 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.

Defendant contends that because the notice of appeal states the appeal is from the denial of a motion to suppress, no certificate of probable cause was needed. But, as we have explained, we cannot review the denial of the motion to suppress because it was a ruling by a magistrate and is therefore not reviewable under Lilienthal. What we are now addressing is defendant's claim of ineffective assistance of counsel for failing to preserve the suppression ruling for appeal. That claim does require a certificate of probable cause.

DISPOSITION

The appeal is dismissed without prejudice to any rights defendant may have to relief by way of a petition for writ of habeas corpus.

We concur: BUTZ , J. DUARTE ,J.


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