Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SCWLCRC06-70866-02
Kline, P. J.
Nyah Kep Abrahams was convicted, following a no contest plea, of possession of concentrated cannabis. On appeal, he contends he was unlawfully detained when he consented to a search of his car and, therefore, the trial court erred in denying his motion to suppress evidence seized from the car. He also argues that, in the event he was required to renew his motion to suppress before a different superior court judge, trial counsel was ineffective for failing to so-renew the motion. For the reasons discussed in this opinion, we shall dismiss the appeal.
PROCEDURAL BACKGROUND
On April 25, 2006, appellant was charged by complaint with possession of marijuana for sale (Health & Saf. Code, § 11359—count 1); possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)—count 2); and transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)—count 3).
On May 5, 2006, appellant filed a motion to suppress evidence pursuant to Penal Code section 1538.5. On May, 16, 2006, the trial court denied the motion.
All further statutory references are to the Penal Code unless otherwise indicated.
On May 18, 2006, appellant waived his right to a preliminary hearing and pleaded no contest to count 2, possession of concentrated cannabis. In exchange, the court dismissed count 1 with a Harvey waiver and also dismissed count 3.
People v. Harvey (1979) 25 Cal.3d 754.
On June 29, 2006, the trial court placed appellant on six months’ probation plus 180 days in jail, with 68 days’ credit. In addition, the court ordered that probation would terminate upon appellant’s completion of his jail term.
On August 11, 2006, appellant filed a notice of appeal.
The following facts are based on evidence presented at the hearing on the motion to suppress.
Prosecution Case
Mendocino County Sheriff’s Deputy James Wells testified that, on Sunday, April 23, 2006, at about 7:15 a.m., he was traveling northbound on North Main Street in Willits in a marked patrol car. He saw a vehicle come around a corner, traveling at a high rate of speed. He estimated that the car was traveling at a little more than 40 miles per hour in a 25-mile-per-hour zone. After following the vehicle for a couple of blocks, Wells, who was in full uniform with a Glock handgun in plain view on his belt, initiated a traffic stop of the vehicle. The driver pulled the vehicle into the driveway of a business parking lot and Wells pulled in and stopped about 10 feet behind the other vehicle. Wells was not sure if there was another entrance to the parking lot. Once he stopped, Wells turned off the rotator lights on the patrol car, but left on the front and rear red and blue flashing embers. Wells then contacted the driver, whom he identified as appellant at the hearing.
Appellant appeared nervous. He was moving around in his seat and fidgeting his hands, and he did not really make eye contact with Wells. He said he was going to McDonald’s and needed to use the restroom. According to Wells, it is not uncommon for a person to be nervous when contacted by a uniformed officer. Wells asked him for his driver’s license, registration and insurance. Appellant gave Wells a Mexican driver’s license and also provided his birth date, at Wells’s request. Appellant told Wells the vehicle was a rental car and handed him the rental agreement, which was in his name. Wells returned to his patrol car and requested that dispatch run a records check on appellant. A short time later, the dispatcher advised Wells that there was no record of a driver’s license for appellant and dispatch was unable to run a check regarding another country’s driver’s license. Shortly after Wells had returned to his patrol car, Willits Police Officer Snyder pulled up and parked on the passenger side of appellant’s vehicle. He also was in full uniform with a firearm visible on his belt.
Wells then returned to appellant, who had waited in his car. Snyder walked over to the passenger side of the car. Wells handed back appellant’s driver’s license, and told appellant, “I wasn’t writing him a ticket, he needed to watch his speed when he’s coming through town.” Appellant responded that “yeah, that he’d watch his speed.” Wells then asked appellant “if there was anything illegal in the vehicle such as guns, drugs, or bazookas.” About five to ten seconds passed between the time Wells handed appellant back his paperwork and asked this question. Appellant “kind of laughed and said no.” Wells then asked, “So you don’t mind if I take a quick look?” Appellant responded, “ ‘Okay. Do you want me to step out of the vehicle or get out of the car?’ ” Wells opened the car door and asked appellant if he could “step back to my partner.”
From the time Wells pulled appellant over to the time he told appellant he was not going to issue a citation for speeding approximately five to ten minutes passed.
Wells assumed appellant was laughing at the reference to bazookas.
Appellant got out of the vehicle and walked over to Officer Snyder, who had moved to the back of the car. Wells began searching the vehicle. Within two to three minutes, he found a little over 10 pounds of bud marijuana behind the passenger seat. There was also some concentrated cannabis at the bottom of the bags holding the marijuana. When he pulled the bag out of the car, Wells asked appellant, “What’s this?” Appellant just looked down at the ground. After asking appellant if he had a medical reason for possessing the marijuana, Wells arrested appellant.
Defense Case
Lori Keiser, dispatch supervisor with the Mendocino County Sheriff’s Office, interpreted the dispatch audiotape that recorded the traffic stop of appellant. She testified that Deputy Wells initiated the traffic stop at approximately 7:20 a.m. on April 23, 2006. At 7:33 a.m., Wells advised dispatch that an arrest had been made.
The court ultimately ruled as follows: “The court finds that the traffic stop was supported by probable cause to believe that the defendant was speeding. The period of time that the defendant was detained to investigate the traffic stop was reasonable under all the circumstances, including the circumstance that the defendant could produce only a foreign driver’s license.
“After the traffic stop was completed and the officer had returned all of the defendant’s documentation to the defendant, the officer told the defendant he was letting him off with a warning but that he should watch his speed. The testimony was quite clear that the officer was finished with the traffic violation investigation at that time.
“The officer then asked the defendant whether he had any ‘drugs, guns or bazookas’ in the car and asked if the defendant minded if he took a look. The defendant’s response was ‘OK.’ The defendant also asked if the officer wanted him to get out of the car. The subsequent cursory search of the vehicle resulted in the seizure of a substantial quantity of marijuana and concentrated cannabis.
“The search was not supported by probable cause. Until the search took place the officer had no basis to conclude that the defendant was in possession of anything illegal. The prosecution relies on consent. The prosecution argument is that the defendant was free to leave at that point. He did not have to consent to the search. The officer makes a regular practice of asking the ‘bazookas’ question after he has completed a traffic stop. The officer did not prolong the traffic investigation or hold onto the defendant’s paperwork to ‘coerce’ consent to search. He completed the traffic investigation, gave back the documents and only then asked for consent to search. There was no direct evidence presented of the defendant’s state of mind but a reasonable driver in his position would have been free to decline consent to search.
“The motion to suppress is denied.”
DISCUSSION
Appellant contends he was unlawfully detained when he consented to the search of his car and therefore, the trial court erred in denying the motion to suppress the evidence seized from the car. According to appellant, the detention from the traffic stop had not terminated when, seconds after returning appellant’s paperwork and warning him about speeding, he asked whether appellant had any guns, drugs, or bazookas in the car and requested consent to search.
Before proceeding to the merits of appellant’s claim, we must address the preliminary question whether the claim has been preserved for appeal in light of the fact that appellant failed to renew his suppression motion before a different superior court judge.
I. Preservation of the Issue for Appeal
In People v. Lilienthal (1978) 22 Cal.3d 891, 896 (Lilienthal), the California Supreme Court held that, when a defense motion to suppress has been denied at a preliminary hearing, it must be renewed before the superior court to preserve the issue for appeal. “The unification of the municipal and superior courts has not abrogated the need for a renewal of a motion to suppress evidence following certification of a case to the superior court. [Citations.] Lilienthal continues to apply postunification because the California Constitution, article VI, [former] section 23, subdivision (c), which created the unified court system, specifically provides for superior court review of preliminary hearing suppression motions. [Citation.] The rationale for continuing to apply Lilienthal after unification is based on the distinct roles assigned to the magistrate and the superior court. [Citation.]” (People v. Garrido (2005) 127 Cal.App.4th 359, 364; accord, People v. Hinds (2003) 108 Cal.App.4th 897, 900 (Hinds).)
Appellant argues that the Lilienthal rule is not applicable in this case because the same superior court judge heard the motion to suppress, took appellant’s plea, and sentenced him. Appellant relies on People v. Callahan (1997) 54 Cal.App.4th 1419 (Callahan), a pre-unification case in which all of the proceedings took place before the same municipal court judge. The Court of Appeal held that an appellate court may directly review a ruling on a suppression motion when such a motion is made in municipal court and “if the entry of the plea and the imposition of judgment both occur in the municipal court.” (Id. at p. 1427.)
However, Callahan has been superseded by trial court consolidation and subsequent legislative action. As the court observed in People v. Garrido, supra, in 1998, subsequent to the Callahan decision, “section 859c and Government Code section 70212, subdivisions (e) and (f), were added by legislation specifically triggered by court consolidation. (Stats. 1998, ch. 931, §§ 370, 257.) Section 859c provides that ‘[p]rocedures 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.’ With regard to Government Code section 70212, subdivision (e) clarifies that ‘[m]atters 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.’ “ (People v. Garrido, supra, 127 Cal.App.4th at pp. 365-366; see Cal. Const., art. VI, former § 23, subd. (c)(7).) Moreover, other previously applicable statutes were amended or repealed. (Garrido, at p. 366, citing § 859a, subd. (b) and former § 1462.) The new statutory scheme makes clear that a defendant must renew any rulings and orders made by the judge conducting the preliminary hearing before a new and different superior court judge “unless agreed to by the parties.” (§ 859c.)
Here, appellant makes no claim that there was any agreement between him and the prosecution to do other than follow the general statutory requirements relating to superior court review of a challenged ruling on a motion to suppress. The suppression hearing took place at the time scheduled for the preliminary hearing and, following denial of the suppression motion, appellant pleaded no contest to count 2 of the complaint. He was thereafter placed on probation. Appellant’s failure to renew the suppression motion before a different superior court judge precludes our review of the issue on appeal.
II. Ineffective Assistance of Counsel Claim
In a supplemental brief, appellant argues that, assuming this issue is not reviewable on direct appeal, his attorney was ineffective in failing to renew the motion to suppress before a different superior court judge.
Appellant observes that, because his probation terminated after he completed his 180-day jail term, he cannot raise his ineffective assistance of counsel claim in a petition for writ of habeas corpus. (See Mendez v. Superior Court (2001) 87 Cal.App.4th 791, 796.)
To prove ineffective assistance of counsel, a defendant must show that “counsel’s representation fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.” (Strickland v. Washington (1984) 466 U.S. 668, 688.) In addition, the defendant must affirmatively establish prejudice by showing “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at p. 694.)
An appeal that raises the claim of ineffective assistance of counsel occurring before the entry of a plea of no contest is inoperative without a certificate of probable cause. (People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245.) Here, the failure of appellant’s counsel to renew the suppression motion occurred before appellant’s no contest plea. The substance of his claim, therefore, is a challenge to the propriety of his plea, and he was required to obtain a certificate of probable cause from the trial court pursuant to section 1237.5 before he could raise the issue on appeal. (See People v. Stubbs, supra, 61 Cal.App.4th at pp. 244-245.) Because he did not do so, his appeal is inoperative. (See id. at p. 245.)
In addition, even if a certificate of probable cause were not required (cf. People v. Workman (1989) 209 Cal.App.3d 687, 692-693), or if appellant’s failure to comply with section 1237.5 were otherwise excused (see People v. Ribero (1971) 4 Cal.3d 55, 65; People v. Grey (1990) 225 Cal.App.3d 1336, 1339-1340; but see People v. Aguilar (2003) 112 Cal.App.4th 111, 115-116, citing In re Chavez (2003) 30 Cal.4th 643, 657-658), we would conclude that ineffective assistance of counsel has not been demonstrated. Counsel may well have had tactical reasons for failing to renew the suppression motion before a different judge. In Hinds, supra, the appellate court, in rejecting a similar ineffective assistance of counsel claim, stated that “counsel was not given an opportunity to explain why the motion was not renewed, and a satisfactory explanation could exist. For instance, the availability of the plea bargain accepted by the defendant may have been dependent upon not further pursuing the suppression motion.” (Hinds, supra, 108 Cal.App.4th at p. 902.)
In the present case, on May 16, 2006, after the trial court denied the suppression motion, defense counsel asked for a moment to talk to appellant “about possibly entering a plea that we discussed last week.” Counsel then asked for a couple of days for appellant “to think about his options.” The prosecutor then stated, “for the record,” that “[o]ur original offer that was relayed on the record on 5/11 would stay open until Thursday for defense and counsel to consider that plea.” On May 18, 2006, appellant pleaded no contest to possession of concentrated cannabis. Two other counts were dismissed. In addition, the prosecutor agreed not to request a state prison sentence. Given the prosecutor’s statement on May 16 that his extremely favorable offer would stay open for two days, it can be inferred from the record that, on May 18, defense counsel reasonably chose to take advantage of an extremely generous plea offer, in lieu of allowing the prosecution’s offer to lapse by renewing the suppression motion before a different superior court judge. (See, e.g., Hinds, supra, 108 Cal.App.4th at p. 902.)
On May 11, 2006, defense counsel stated that, if the suppression motion were to be denied, appellant would be prepared to plead guilty to count 2. Counsel also said that he had been “advised by the People that they do not anticipate arguing for state prison at the time of sentencing and that I was advised by the [c]ourt that there is a likelihood that he would receive a grant of probation . . . .” The court responded, “I think those are fair statements of fact and accurately embrace the discussion that was had. It would, however, be an open plea.”
Accordingly, even if the appeal were not inoperable due to appellant’s failure to obtain a certificate of probable cause, his claim of ineffective assistance of counsel would fail because he has not shown that “counsel’s representation fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.” (Strickland v. Washington, supra, 466 U.S. at p. 688.)
DISPOSITION
The appeal is dismissed.
We concur: Lambden, J., Richman, J.