People v. Rhodes CA5 ( 2015 )

Filed 12/11/15 P. v. Rhodes CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F069595
Plaintiff and Respondent,
(Super. Ct. No. BF153450A)
v.
CLEMENT M. RHODES, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Barry Hammer†
and Colette M. Humphrey, Judges.‡
Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
* Before Levy, Acting P.J., Detjen, J. and Peña, J.
† Retired Judge of the San Luis Obispo Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
‡ Judge Hammer presided over the motion to suppress; Judge Humphrey presided
over the sentencing hearing.
-ooOoo-
As part of a plea agreement, Clement M. Rhodes pled guilty to one count of
possession of a controlled substance while armed with a firearm (Health & Saf. Code,
§ 11370.1. subd. (a)), and admitted he had served a prior prison term within the meaning
of Penal Code section 667.5, subdivision (b). He was sentenced to the agreed upon term
of five years.
Rhodes’s notice of appeal stated he was challenging the magistrate judge’s denial
of his motion to suppress. As this issue is not cognizable on appeal because he failed to
relitigate the issue in the superior court, we will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Rhodes was stopped for a traffic violation (failure to signal a left turn) by Kern
County Deputy Sheriff Christopher Lasater. Rhodes admitted to Lasater he was on
probation. Lasater proceeded to search the vehicle because of the search condition
included in Rhodes’s probation. Lasater found two firearms and a bag of crystalline
substance that later was tested and proved to be methamphetamine.
The above facts were summarized from the testimony at the preliminary hearing.
Prior to the preliminary hearing, defense counsel filed a motion to suppress the evidence
found in the search of the vehicle on the grounds that Lasater did not have probable cause
to conclude Rhodes had committed a traffic violation, and therefore the detention was
illegal. The basis of the argument was that because Rhodes’s change of lane and left turn
did not affect any other traffic, there was no Vehicle Code violation even if he failed to
use his turn signal 100 feet before making the left turn. The parties stipulated the
magistrate would rule on the motion based on the testimony obtained at the preliminary
hearing. At the conclusion of the evidence, the magistrate denied the motion to
suppress.1
1 After the evidence had been presented at the preliminary hearing, and after the
prosecutor had completed his opening argument regarding the charges and the motion to
2.
The information charged Rhodes with possession of a controlled substance for sale
(Health & Saf. Code, § 11378), transportation of a controlled substance (Health & Saf.
Code, § 11379, subd. (a)), possession of a controlled substance (Health & Saf. Code,
§ 11377, subd. (a)), possession of a controlled substance while armed with an operable
firearm (Health & Saf. Code, § 11370.1, subd. (a)), and two counts of possession of a
firearm by a felon (Pen. Code, § 29800, subd. (a)(1)). The information alleged as
enhancements that the crimes were committed for the benefit of a criminal street gang
(Pen. Code, § 186.22, subd. (b)), Rhodes had suffered two prior convictions and served
prison terms therefore (Pen. Code, § 667.5, subd. (b)), and Rhodes had suffered a prior
conviction for sales of a controlled substance (Health & Saf. Code, § 11370.2, subd. (c)).
Rhodes thereafter accepted the prosecutor’s plea offer to plead no contest to the
possession of a controlled substance while armed and admit one prison term enhancement
for a term of five years in prison. Rhodes signed a plea agreement form consistent with
this offer, and the trial court sentenced Rhodes in accordance with the agreement. The
remaining counts and enhancements were dismissed.
DISCUSSION
Rhodes did not obtain a certificate of probable cause, therefore the only possible
issues he can raise are sentencing issues and denial of his motion to suppress. (Pen.
Code, § 1237.5; People v. Mendez (1999) 19 Cal. 4th 1084, 1096; People v. Sem (2014)
229 Cal. App. 4th 1176, 1187.) The notice of appeal suggests Rhodes is appealing from
the denial of the motion to suppress.
This issue is not congnizable on appeal because Rhodes failed to renew the motion
to suppress in the superior court. “In order to obtain direct appellate review of a
suppress, defense counsel presented the magistrate with additional points and authorities,
including an argument primarily relying on People v. Carmona (2011) 195 Cal. App. 4th
1385. Deputy Sheriff Lasater was no longer available to provide evidence relevant to the
new argument. In denying the motion, the magistrate advised defense counsel that he
could renew his motion to suppress at a later time.
3.
magistrate’s denial of a motion to suppress evidence under section 1538.5 at the
preliminary hearing, a defendant must either renew the motion in the trial court or
challenge the legality of the search in a motion to dismiss under section 995.
[Citations.]” (People v. Hawkins (2012) 211 Cal. App. 4th 194, 199-200.) Rhodes did not
challenge the magistrate’s denial of the motion to suppress by either procedure.
Apparently recognizing the futility of now challenging the magistrate’s ruling,
appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal. 3d 436
asserting that after a thorough review of the record she did not identify any arguable
issues. By letter dated November 13, 2014, we invited Rhodes to directly submit to us
any issues he wished us to consider. Rhodes did not respond to our invitation.
We have reviewed the entire record and conclude there are no arguable issues.
Rhodes’s plea was entered shortly after the preliminary hearing without any attempt to
renew his motion to suppress. Therefore, he may not challenge the magistrate’s ruling on
direct appeal. (People v. Hawkins, supra, 211 Cal.App.4th at pp. 199-200.) No other
issues appear in the record.
DISPOSITION
The judgment is affirmed.
4.