Opinion
NOT TO BE PUBLISHED
Super. Ct. No. P08CRF0158
HULL, J.After denying a motion to suppress evidence at the preliminary hearing, the magistrate held defendant Joseph Ray Messer to answer on felony charges. A hearing on an anticipated motion to dismiss the information (Pen. Code, § 995) was scheduled, but before such hearing, defendant changed his plea.
The record does not contain a motion to dismiss and it does not appear that one was ever filed.
Defendant pleaded no contest to driving under the influence of alcohol causing injury, and admitted two allegations that he caused great bodily injury. (Veh. Code, § 23153, subd. (a); Pen. Code, § 12022.7.) In exchange, another great bodily injury allegation and a strike conviction for voluntary manslaughter were dismissed, and defendant was promised seven years in state prison. Trial counsel stated his belief that the plea bargain would preserve the suppression issue. The trial court accepted the plea, and sentenced defendant to prison for seven years as provided by the bargain.
Further section references are to the Penal Code.
Defendant filed a timely notice of appeal, but he did not obtain a certificate of probable cause.
Appointed appellate counsel filed an opening brief that challenged the magistrate’s ruling denying the motion to suppress evidence. Appellate counsel then filed a new brief contending trial counsel was incompetent because trial counsel failed to preserve the suppression issue.
We agree defendant has not preserved the suppression issue. To challenge the ruling made at the preliminary hearing, defendant should have litigated a motion to dismiss the information. (People v. Lilienthal (1978) 22 Cal.3d 891, 896-897 [renewing suppression motion by means of a motion to dismiss in the superior court will preserve the issue for review after a guilty plea]; People v. Garrido (2005) 127 Cal.App.4th 359, 364 [Lilienthal rule survives court unification]; People v. Hart (1999) 74 Cal.App.4th 479, 485-486.)
Defendant’s claim that trial counsel was incompetent in advising him before he pleaded no contest is a challenge to the validity of the plea, a challenge that is barred because defendant lacks a certificate of probable cause. (People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245 [Stubbs in part claimed that before he changed his plea, trial counsel failed to advise him he could challenge search; appeal dismissed].)
The procedural facts here are similar to those in People v. Richardson (2007) 156 Cal.App.4th 574 (Richardson). After we concluded Richardson had not preserved a suppression issue, we concluded he could not challenge his plea by recasting his claim as one of incompetence of counsel, and we dismissed his appeal:
“Because he is barred from arguing the search and seizure issue on appeal by his failure to raise that issue in the superior court, defendant argues in the alternative that he was denied effective assistance of counsel because of his trial counsel’s failure to preserve the search and seizure issue for appellate review. We cannot review this argument either, however, because it is beyond the limited issues that are reviewable on appeal from a conviction following a guilty plea.
“Under section 1237.5, an appeal from a conviction predicated on a guilty 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.’ [Citation.]
“We have concluded already that defendant is barred by the Lilienthal rule from seeking appellate review of the magistrate’s denial of his suppression motion under section 1538.5(m). Thus, we can address his claim of ineffective assistance of counsel only if that claim relates to ‘proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.’ [Citation.] It does not, and therefore we cannot address it.
“To succeed on his claim of ineffective assistance of counsel, defendant would have to show that his ‘(1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel’s failings.’ [Citation.] As we have explained, the only way defendant could have preserved his right to appellate review of his Fourth Amendment arguments would have been to have refused to plead guilty before the magistrate under section 859a and to have allowed himself to be held to answer, after which he could have filed a motion to set aside the information under section 995 or renewed his motion to suppress under section 1538.5, subdivision (i). Thus, if his trial counsel erred in failing to preserve the search and seizure issue for appellate review, that error clearly did not occur in ‘proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.’ [Citation.] Accordingly, we are without power to address defendant’s ineffective assistance of counsel claim in the absence of a certificate of probable cause, and defendant must pursue any such claim through a petition for writ of habeas corpus.” (Richardson, supra, 156 Cal.App.4th at pp. 595-596.)
Defendant contends People v. Hinds (2003) 108 Cal.App.4th 897, presented similar procedural facts, but we did not dismiss the appeal. In Hinds, we rejected an incompetence of counsel claim because there may have been a tactical reason why a suppression issue had not been renewed before Hinds accepted a plea bargain, and we affirmed the judgment. (Id. at p. 902.) Defendant argues that because his attorney thought he was preserving the suppression issue, no tactical reason exists in this case, and we should reach the suppression issue.
Hinds does not support defendant’s claim that we should not dismiss this case. Hinds does not state whether a certificate of probable cause existed, and does not address the effect of the lack of such a certificate. “‘“It is axiomatic that cases are not authority for propositions not considered.”’” (People v. Bush (2001) 88 Cal.App.4th 1048, 1053.)
DISPOSITION
The abstract misstates defendant’s “total time imposed” as four years, instead of seven years. The abstract must accurately reflect the sentence, and the trial court retains the authority to correct clerical errors in abstracts. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.) The trial court should prepare and forward to the Department of Corrections and Rehabilitation a corrected abstract in this case.
We concur: SIMS, Acting P. J., CANTIL-SAKAUYE, J.