People v. Seang CA3 ( 2021 )

Filed 11/9/21 P. v. Seang CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C093902
Plaintiff and Respondent, (Super. Ct. No.
STKCRFE20190004407)
v.
SOEUB SEANG,
Defendant and Appellant.
Appointed counsel for defendant Soeub Seang has asked this court to conduct an
independent review of the record to determine whether there are any arguable issues on
appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would
result in a disposition more favorable to defendant, we affirm the judgment.
We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
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FACTS AND HISTORY OF THE PROCEEDINGS
Defendant was found in possession of a firearm. He was not permitted to have a
firearm due to a prior felony conviction. The People filed a complaint charging
defendant with being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a);
statutory section references that follow are to the Penal Code); possession of ammunition
(§ 30305, subd. (a)(1)); and possession of a controlled substance while armed (Health &
Saf. Code, § 11370.1, subd. (a)). The People also alleged various enhancement
allegations.
After hearing defendant’s motion to suppress evidence (§ 1538.5) and preliminary
hearing concurrently, the magistrate denied the motion to suppress and held defendant to
answer.
The People filed an Information charging defendant with being a felon in
possession of a firearm; possession of ammunition; and possession of a controlled
substance while armed, with no enhancement allegations. Defendant pleaded no contest
to being a felon in possession. The trial court dismissed the remaining charges on the
People’s motion. The trial court sentenced defendant to the stipulated term of 16 months
in state prison and awarded him 10 days of presentence custody credits. The trial court
imposed a $300 restitution fine (§ 1202.4) and imposed and suspended an identical post-
release community supervision revocation fine (§ 1202.45), a $30 surcharge
(§ 1202.4(l)), a $40 court security fee (§ 1465.8), and a $30 court conviction fee (Gov.
Code, § 70703).
Defendant did not obtain a certificate of probable cause. (§ 1237.5.) Defendant’s
notice of appeal indicated his appeal was based on the denial of his motion to suppress.
We granted defendant’s request to construe his notice of appeal to include as grounds for
appeal that there were sentencing issues or other matters occurring after the plea that do
not affect the validity of the plea. In that motion, defendant’s appellate counsel
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acknowledged that because the suppression motion was not renewed after the filing of the
information, as part of a section 995 motion or a new section 1538.5 motion, the denial of
the motion could not be challenged on appeal. (People v. Lilienthal (1978) 22 Cal.3d
891.)
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts and procedural history of the case and requests this court to
review the record and determine whether there are any arguable issues on appeal.
(People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of his right
to file a supplemental brief within 30 days from the date the opening brief was filed.
More than 30 days have elapsed, and defendant has not filed a supplemental brief.
As appellate counsel noted, to preserve an appellate challenge to a magistrate’s
denial of a motion to suppress at a preliminary hearing, the 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. (People v. Lilienthal, supra, 22 Cal.3d at pp. 896-
897; People v. Richardson (2007) 156 Cal.App.4th 574, 583.) Defendant did not renew
the motion to suppress in superior court, and this challenge is not cognizable on appeal.
Defendant did not seek a certificate of probable cause and purports to appeal from
the sentence or other matters occurring after the plea that do not affect the validity of the
plea. (§ 1237.5.) Accordingly, any issues relating to the validity of defendant’s plea are
not cognizable on appeal. (Ibid.; People v. Mendez (1999) 19 Cal.4th 1084, 1095, 1098-
1099.) Moreover, at sentencing, the trial court imposed the stipulated sentence that was
an integral component of defendant’s plea. Thus, the failure to obtain a certificate of
probable cause also precludes defendant from challenging his sentence because that
would be, in effect, an attack on the validity of the plea. (People v. Johnson (2009)
47 Cal.4th 668, 678.)
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Having undertaken an examination of the entire record pursuant to Wende, we find
no arguable errors that would result in a disposition more favorable to defendant, and
accordingly, we will affirm the judgment.
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J.
We concur:
ROBIE, J.
KRAUSE, J.
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