Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. VCR181328
Margulies, J.
Following the denial of his motion suppress evidence, made in conjunction with his preliminary hearing, defendant agreed to plead no contest to possession of cocaine base for sale, subject to the condition that he would be allowed to appeal the ruling on his suppression motion. However, defendant failed to properly renew his suppression motion in the superior court before changing his plea, and failed to obtain a certificate of probable cause. We conclude that defendant waived his right to renew his challenge to the search warrant in this appeal, but we remand the case to the trial court to give defendant an opportunity to withdraw his plea.
I. BACKGROUND
Defendant was charged by felony complaint with one count of possession for sale of cocaine base. (Health & Saf. Code, § 11351.5.) The complaint further alleged that defendant had failed to remain free from prison custody for a period of five years. (Pen. Code, § 667.5, subd. (b).)
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant filed a motion to suppress evidence pursuant to section 1538.5. The motion was heard in conjunction with the preliminary hearing in July 2006. At the conclusion of the hearing, the magistrate denied the motion to suppress and held defendant to answer on the charge.
The district attorney thereafter filed an information setting forth the same charges contained in the complaint. In September 2006, defendant pleaded no contest to one felony count of possession for sale of cocaine base and admitted the prior prison term allegation. The parties agreed as a condition of the plea bargain that defendant would be allowed to appeal the ruling on the motion to suppress evidence.
At the change of plea hearing, the following colloquy occurred:
The same superior court judge who accepted defendant’s guilty plea in September 2006 had presided over the preliminary hearing and decided defendant’s suppression motion in July 2006, sitting as a magistrate.
“[Defense Counsel]: This matter is going to resolve, Your Honor. Part of the deal is that he will be able to appeal the denial of the 1538.5 motion that was made in conjunction with the preliminary hearing. Just to make that clean for the Court of Appeal[], what I would ask is that we deem that motion made and denied again based on the preliminary hearing transcript in the superior court.
“THE COURT: Why is that necessary?
“[Defense Counsel]: Well, hopefully it’s not necessary. If it were denied in superior court, he would certainly have the right to appeal that. If it’s only done in municipal court pre-prelim or in conjunction with the prelim before the holding order — I don’t know if it’s perfectly clear. I just wanted to make it, as I say, clean for the Court of Appeal[].
“[¶] . . . [¶]
“THE COURT: All right. I have agreed to issue a certificate so that you may appeal that issue.”
The trial court accepted defendant’s change of plea. In October 2006, the trial court suspended imposition of sentence, placed defendant on formal probation for three years, and ordered defendant to serve 165 days in county jail. Defendant filed a timely notice of appeal. The notice stated that the appeal follows “[a] guilty (or no-contest) plea” and “is based on the denial of a motion to suppress evidence under Penal Code section 1538.5.” The notice of appeal included no certificate of probable cause.
II. DISCUSSION
Defendant initially sought reversal of the judgment on the grounds that the trial court erred in denying his motion to suppress evidence. The People moved to dismiss defendant’s appeal, contending that this court lacked jurisdiction to hear it because defendant failed to renew his motion to suppress in the superior court after he was arraigned on the information. The People’s motion further asserted that defendant could not recast his appeal as a challenge to the validity of his plea or to his trial counsel’s effectiveness in negotiating it, because he had not obtained a certificate of probable cause from the trial court.
While the People’s motion was pending, this court granted defendant’s request for leave to file a supplemental opening brief asserting that: (1) his trial counsel’s failure to properly renew the suppression motion in superior court constituted ineffective assistance of counsel; and (2) if this court lacked jurisdiction to hear the present appeal, the matter should be remanded to superior court to allow him to withdraw his plea. We thereafter denied the People’s motion to dismiss. In their respondent’s brief, the People renew their arguments concerning this court’s jurisdiction.
A. Lilienthal Waiver
Section 1538.5, subdivision (m) provides in relevant part: “A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty. Review on appeal may be obtained by the defendant provided that at some stage of the proceedings prior to conviction he or she has moved for the return of property or the suppression of the evidence.”
The phrase “at some stage of the proceedings” in the statute has been construed by our Supreme Court to refer to the proceedings in the superior court. (People v. Lilienthal (1978) 22 Cal.3d 891, 896 (Lilienthal).) Thus, to appeal a ruling on a suppression motion following a plea of guilty (or no contest), subdivision (m) of section 1538.5 requires that the motion must have been brought in superior court. (Lilienthal, at pp. 896–897.) A contrary rule would allow the appellate court to reverse a superior court judgment “for error it did not commit and that was never called to its attention.” (Id. at p. 896.)
The rule adopted in Lilienthal continues to apply after court unification. “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.” (People v. Garrido (2005) 127 Cal.App.4th 359, 364; see also People v. Hinds (2003) 108 Cal.App.4th 897, 900; People v. Hart (1999) 74 Cal.App.4th 479, 485–486 (Hart).) Moreover, Lilienthal requires that the defendant seek an actual hearing and ruling on the motion by a superior court judge other than the judge or magistrate who originally entertained the motion to suppress. (People v. Garrido, at pp. 365–366; Gov. Code, § 70212, subd. (f) [“Penal Code procedures that necessitate superior court review of, or action based on, a ruling or order by a municipal court judge shall be performed by a superior court judge other than the judge who originally made the ruling or order”]; Pen. Code, § 859c [“[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”].)
In this case, defense counsel’s colloquy with the court at the change of plea hearing fell far short of satisfying Lilienthal. The request to “deem” the suppression motion made and denied in superior court was raised before the same judge who had decided the suppression motion sitting as a magistrate. That judge did not in fact entertain or rule on the motion in superior court, and did not even respond directly to counsel’s request that it do so. No other superior court judge heard or ruled on the motion before defendant entered his plea. As defendant states in his supplemental opening brief: “While [defendant’s] attorney nominally brought the issue to the superior court’s attention by asking that the suppression motion be ‘deemed’ made and denied, the court’s inappropriate response clearly indicated no actual review occurred. Further, the fact that the magistrate and the trial judge were one in the same does not negate the need for [defendant] to seek review of the ruling.”
In his reply brief, defendant backs away from his apparent concession that no actual superior court review of the suppression issues took place. He argues that his trial counsel’s request for the court to deem the motion renewed gave the superior court a sufficient opportunity to address the issues, and that the People forfeited their complaint about the procedure followed by failing to object to it at the time. We are not convinced. As held in People v. Kain (1989) 212 Cal.App.3d 816, at pages 821–822, to satisfy Lilienthal, the defendant must, at a minimum, make the basis for his suppression motion clear and must seek and obtain an unambiguous ruling on the motion. Defense counsel’s colloquy with the court in this case did not reach that threshold. Moreover, since it was defendant who wished to preserve his right to appeal the suppression ruling, the People were under no burden to insist that he bring a proper motion in the superior court. The People could not create appellate court jurisdiction merely by failing to interpose an objection when defendant failed to take the steps necessary to preserve his right to appeal.
The trial court is also powerless to create appellate jurisdiction over a non-appealable issue, such as by promising to certify the appeal in furtherance of the plea bargain. As stated in People v. DeVaughn (1977) 18 Cal.3d 889 at page 893, “the trial court could not bargain to preserve [non-appealable] issues on appeal by issuance of certificates of probable cause.” Nor can the parties confer appellate jurisdiction by agreement. In People v. Burns (1993) 20 Cal.App.4th 1266 (Burns), the defendant attempted to appeal the validity of a suppression ruling made at the preliminary hearing without having renewed the motion in superior court. Before the defendant entered his guilty plea, the prosecutor indicated that the parties had agreed that the denial of the motion to suppress would be certified for appeal. (Id. at p. 1274.) The Court of Appeal found the claim noncognizable: “[T]he parties cannot by their agreement confer upon this court the jurisdiction to hear an issue which is not appealable. [Citation.] Although this court has jurisdiction to entertain an issue regarding sentence after appellant’s plea of guilty [citations], we have no authority pursuant to section 1538.5, subdivision (m), to review appellant’s search and seizure claim, which was precluded from consideration in the superior court by appellant’s certified plea.” (Ibid.)
B. Ineffective Assistance
Defendant asserts that “even when a defendant fails to preserve a suppression motion on appeal, when ineffective assistance of counsel is asserted, appellate review may still be had.” However, the trial court in this case did not issue a certificate of probable cause pursuant to section 1237.5. The People maintain that defendant’s ineffective assistance claim required a certificate of probable cause because it attacks counsel’s failure preserve an integral condition of the plea bargain and, in essence, challenges the validity of the plea itself. The People liken this case to People v. Stubbs (1998) 61 Cal.App.4th 243 (Stubbs) in which the Court of Appeal held that a certificate of probable cause was required for a claim of ineffective assistance based on counsel’s failure to advise the defendant, prior to his plea, that he could challenge a search by police and seek the disclosure of a confidential informant. (Id. at pp. 244–245.) The Stubbs panel found that the defendant’s claim was effectively a challenge to the propriety of his guilt plea. (Ibid.)
Section 1237.5 states: “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”
Defendant’s ineffective assistance claim in this case is analogous to that in issue in Stubbs. Defendant is arguing that he changed his plea to no contest in reliance on his belief that his right to seek a reversal of his conviction on appeal was preserved. Unbeknownst to him, and due to his counsel’s assertedly deficient performance, that opportunity had in fact been lost by the time defendant entered his no contest plea. Like the defendant in Stubbs, he is effectively claiming that his plea is invalid because it was induced by a misapprehension attributable to his trial counsel’s ineffectiveness.
The sole case defendant relies on, Hart, supra, 74 Cal.App.4th 479, is distinguishable. After being convicted by a jury, the defendant in Hart claimed on appeal that her trial counsel had been ineffective in failing to renew her suppression motion in the superior court. (Id. at p. 486.) Despite the Lilienthal waiver, the Court of Appeal held that it must consider on the merits whether the search was unlawful in order to determine whether her counsel’s performance was deficient or prejudicial. (Hart, at pp. 486–487.) However, because the defendant in Hart was appealing after a jury verdict, no certificate of probable cause was required. Hart is therefore not authority for the proposition that defendant’s ineffective assistance claim is cognizable on this appeal without a certificate of probable cause. In fact, the same court that decided Hart has now squarely held that a certificate of probable cause is required in order to raise an ineffective assistance claim based on a Lilienthal waiver by way of direct appeal. (People v. Richardson (2007) 156 Cal.App.4th 574, 595–596.)
We note that the right to appellate review of search and seizure issues was not part of the defendant’s plea bargain in People v. Richardson, supra, 156 Cal.App.4th at page 595, footnote 11.
C. Opportunity to Withdraw Plea
Alternatively, if we determine that we have no jurisdiction to entertain the appeal, defendant asks this court to remand the matter to the trial court to give him an opportunity to withdraw his plea. This was the disposition ordered in Burns, supra, 20 Cal.App.4th 1266, under similar factual circumstances. As discussed earlier, the Court of Appeal held in Burns that it lacked jurisdiction to entertain the defendant’s appeal of his search and seizure claim under Lilienthal even though the parties had agreed on defendant’s right to appeal that issue as part of a negotiated plea. (Burns, at p. 1274) The court stated: “[S]ince appellant cannot be given the benefit of his plea bargain, which entailed the ability to raise on appeal the search and seizure claim, he must be permitted to withdraw his guilty plea.” The Burns court accordingly granted a remand for that purpose. (Ibid.)
The People urge us not to follow Burns and suggest that the Burns court did not consider whether it could entertain a challenge to the validity of the plea absent a certificate of probable cause. In fact, the Burns opinion is silent as to whether the defendant in that case had obtained a certificate of probable cause or not. In our view, Burns’s rationale for allowing a defendant to withdraw his plea does not depend on whether the defendant has obtained a certificate of probable cause.
The record demonstrates that the promise of appellate review for defendant’s unlawful search claim was a material inducement for his no contest plea. With the right of appeal lost, defendant has been deprived of a significant condition of the plea agreement, and must be given a remedy. As in Burns, we find that the appropriate remedy is to give defendant the opportunity to withdraw his guilty plea and renew his suppression motion in the superior court, if he so chooses. (See also People v. Navarro (2006) 138 Cal.App.4th 146, 156, fn. 4 [pointing out, in reliance on Burns, that when the defendant’s plea bargain expressly included the right to appeal on the search and seizure issue, the defendant should be able to withdraw her guilty plea if the appeal could not be heard].)
III. DISPOSITION
The judgment is reversed and the cause remanded to the superior court. That court is directed to vacate the no contest plea if defendant makes an appropriate motion within 30 days after the remittitur is issued. In that event, the superior court should reinstate the original charges contained in the information, if the prosecution so moves, and proceed to trial or make other appropriate dispositions. If no such motion to vacate the no contest plea is filed by defendant, the trial court is directed to reinstate the original judgment.
We concur: Marchiano, P.J., Stein, J.