People v. Bernalramirez CA2/1 ( 2021 )

Filed 6/2/21 P. v. Bernalramirez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B309278
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA093574)
v.
JOSE SIGFREDO
BERNALRAMIREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Eric P. Harmon, Judge. Dismissed.
Richard L. Fitzer, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
____________________________
Defendant Jose Sigfredo Bernalramirez purports to appeal
from the judgment after he pleaded no contest to a charge of
carrying an unregistered concealed firearm. Defendant’s
appointed counsel filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende), identifying no issues and requesting that
this court review the record and determine whether any arguable
issue exists on appeal.
The basis of defendant’s appeal is the magistrate’s denial of
defendant’s motion to suppress evidence at the preliminary
hearing. As acknowledged by appellate counsel, defendant
did not challenge the denial of the suppression motion before the
superior court, and thus, under People v. Lilienthal (1978)
22 Cal.3d 891 (Lilienthal), did not preserve the issue for appellate
review. Accordingly, the appeal must be dismissed.
FACTUAL BACKGROUND
The following factual summary is taken from the
preliminary hearing.
On the night of October 7, 2020, Los Angeles Police Officer
John Acosta and his partner were patrolling a commercial and
industrial area. The businesses had closed for the day and there
was no pedestrian or vehicular traffic. That morning at roll call,
Acosta had received from detectives a document indicating that
burglaries and vehicle thefts had been happening in the general
area.
At around 10:40 p.m., Acosta saw defendant walk out from
between two buildings. Acosta thought it was strange to see
someone come out from between the buildings when everything
was closed and there were no other pedestrians. Given the late
hour and the crime rate in the area, Acosta thought defendant
was a possible burglary suspect.
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Acosta and his partner got out of their patrol car and
ordered defendant to stop. Defendant looked in the direction of
the officers and placed his hands up, but continued walking away
from them. He dropped what Acosta believed was a shirt.
The officers followed defendant and detained him against a
fence, placing him in handcuffs. Acosta asked if defendant had
any weapons. Defendant said he had a gun in his pocket. Acosta
recovered a loaded .380 caliber Ruger pistol. The gun was not
registered to defendant.
On cross-examination, Acosta confirmed that when he saw
defendant, he did not hear any alarms, had not received any
radio calls about a possible burglary, and did not see defendant
peek into any windows or tamper with any buildings or cars.
After defendant was detained, Acosta investigated and found
no evidence of burglary.
PROCEDURAL BACKGROUND
A felony complaint alleged that defendant had an
unregistered concealed firearm on his person, in violation of
Penal Code1 section 25400, subdivision (a)(2). Defendant moved
to suppress the evidence of the gun and ammunition under
section 1538.5, contending there was no reasonable suspicion to
justify the officers detaining him.
Judge Harmon, sitting as a magistrate,2 denied the motion
to suppress at the preliminary hearing following presentation of
evidence and argument. Defense counsel immediately interjected
1 Unspecified statutory citations are to the Penal Code.
2 Superior court judges sit as magistrates when presiding
over preliminary hearings. (See People v. Kidd (2019)
36 Cal.App.5th 12, 19, fn. 2.)
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and asked if, in light of the denial of the motion, defendant could
“plead open to the court.” After receiving admonitions, defendant
waived his rights and pleaded no contest to the charge.
Judge Harmon accepted the plea, suspended imposition of
sentence, and granted defendant 36 months of probation and
time served.
Defendant filed a notice of appeal from the denial of the
motion to suppress. We appointed counsel, who filed a Wende
brief raising no issues on appeal and requesting that we
independently review the record to determine if the lower court
committed any error. We advised defendant of the opportunity to
file a supplemental brief. He filed none.
DISCUSSION
In the Wende brief, appellate counsel explains that,
although he believes the magistrate erred in denying the motion
to suppress, appellate counsel cannot challenge the ruling on
appeal because defendant’s counsel below did not renew the
motion in the superior court, as required by Lilienthal. Appellate
counsel states he “will investigate the possibility of filing a
petition for writ of habeas corpus, arguing ineffective assistance
of counsel for not renewing the motion to suppress, should
appellant affirmatively indicate he wishes to withdraw his plea.”
Appellate counsel’s understanding of Lilienthal is correct.
In that case, our Supreme Court held that to preserve an
appellate challenge to a magistrate’s denial of a motion to
suppress at a preliminary hearing, defendant must first raise the
issue in the superior court, either in a renewed motion to
suppress or a motion to set aside the information under
section 995. (Lilienthal, supra, 22 Cal.3d at pp. 896–897;
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People v. Richardson (2007) 156 Cal.App.4th 574, 583
(Richardson).)
This rule applies even if the magistrate is a superior court
judge who, after denying the motion to suppress, accepts the
defendant’s plea and pronounces judgment. (See Richardson,
supra, 156 Cal.App.4th at pp. 590–591.) As explained in
Richardson, “the Lilienthal rule requires a defendant to raise the
search and seizure before a superior court judge acting as a
superior court judge to preserve that issue for appellate
review. . . . [T]his requirement cannot be met when the
defendant takes advantage of the certified plea process and
pleads guilty before the magistrate following the denial of his
suppression motion at the preliminary examination.” (Id. at
p. 591.) Thus, a defendant who wishes to challenge a
magistrate’s denial of a motion to suppress on appeal must
decline to plead before the magistrate, and instead raise the
suppression issue before a different superior court judge. (Id. at
p. 595.) Defendant in the instant case did not do so, and his
challenge is not cognizable on appeal.
We have reviewed the record and find no other arguable
issues. Appointed counsel has fully complied with counsel’s
responsibilities and no arguable issue exists. (People v.
Kelly (2006) 40 Cal.4th 106, 126; Wende, supra, 25 Cal.3d at
pp. 441–442.) Because the only basis for this appeal is the denial
of the suppression motion, and under Lilienthal that issue is not
properly before us, the appeal must be dismissed. We express
no opinion regarding a petition for a writ of habeas corpus should
defendant choose to file one.
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DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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