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People v. Weber10/10/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant Paul Eugene Weber appeals his conviction following a no contest plea to possession of a controlled substance for sale (Health & Saf. Code, § 11378). He also admitted a prior conviction for transportation/sale of a controlled substance (Health & Saf. Code, §§ 11379, 11370.2). He contends his motion to suppress was erroneously denied and, alternatively, contends that defense counsel's failure to preserve the issue for appeal constitutes ineffective assistance of counsel. We conclude that the search issue was not preserved for appeal. As to the ineffective assistance of counsel claim, we dismiss the appeal due to defendant's failure to obtain a certificate of probable cause.
Background
Defendant was charged by complaint with transportation/sale of methampheta-mine (Health & Saf. Code, § 11379, subd. (a) [count 1]); possession for sale of methamphetamine (Health & Saf. Code, § 11378 [count 2]); being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a) [count 3]); driving under the influence of drugs or alcohol (Veh. Code, § 23152, subd. (a) [count 4]); giving false identification to a police officer (Pen. Code, § 148.9, subd. (a) [count 5]); unlawful possession of a hypodermic needle or syringe (Bus. & Prof. Code, § 4140 [count 6]); and driving while privileges are suspended pursuant to other offenses (Veh. Code, § 14601.1, subd. (a) [count 7]). The complaint also alleged a prior conviction of driving with a license suspended for driving under the influence (Veh. Code, § 14601.2) and a prior conviction for driving with a license suspended for failure to take a chemical test or driving with a specified blood alcohol level (Veh. Code, § 14601.5).
At the preliminary hearing, defendant unsuccessfully moved to suppress evidence obtained pursuant to a traffic stop. Thereafter, he was held to answer and charged by information with the above-mentioned offenses. Defendant failed to renew his suppression motion in the trial court after being arraigned on the information. Pursuant to a plea bargain, defendant pled no contest to the Health and Safety Code section 11378 violation and admitted the prior transportation/sale conviction in exchange for a stipulated six-year prison term (three years on the offense, three years on the prior), dismissal of the other charges, and a referral to the California Rehabilitation Center (CRC). The court suspended execution of sentence and ordered defendant committed to CRC. Defendant thereafter filed a notice of appeal from the denial of his suppression motion.
Discussion
I. Failure to Preserve Search Issue
When a felony offense is charged by a complaint, the defendant may move for suppression of evidence at the preliminary hearing. (Pen. Code, § 1538.5, subd. (f).) If that motion is unsuccessful, and the defendant is held to answer (see § 872), he may renew the suppression motion in the superior court. (§ 1538.5, subd. (i).) The defendant may move to suppress evidence in the superior court after an information is filed, even if no suppression motion was made at the preliminary hearing. (§ 1538.5, subds. (f)(1) & (i).) Section 1538.5, subdivision (m), permits the defendant to obtain appellate review of the superior court's denial of a motion to suppress even if the defendant pled guilty after
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