People v. Gutierrez

Opinion

GILBERT, P. J.

In this criminal action the magistrate granted defendant’s motion to suppress evidence. (Pen. Code, § 1538.5.)

1

The prosecution successfully moved to reinstate the complaint pursuant to section 871.5. To challenge the validity of the search on appeal, must defendant first make a suppression motion before the superior court? No. Once the door has been shut on defendant, he is not required to knock again. He need not perform a useless act to preserve his right to appeal.

Peter Gutierrez appeals his conviction after a guilty plea to one count of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and one count of forgery (§ 475, subd. (b)). Although Gutierrez may challenge the ruling on his search and seizure motion, we conclude it was constitutionally valid and affirm.

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[1484]

DISCUSSION

I

The Attorney General contends that Gutierrez is procedurally barred from challenging the validity of the search and seizure.

The Attorney General does not contest that when the issue is properly preserved in the trial court, a defendant may seek review of the validity of the search and seizure on appeal from his conviction after a plea of guilty. (§ 1538.5, subd. (m).) The Attorney General points out, however, that section 1538.5, subdivision (m), provides in part, “Review on appeal may be obtained by the defendant provided that at some stage of the proceedings prior to conviction he . . . has moved for . . . the suppression of the evidence.” The Attorney General cites

People v. Lilienthal

(1978) 22 Cal.3d 891, 896-897 [150 Cal.Rptr. 910, 587 P.2d 706], for the proposition that to preserve the issue it is not enough to raise it at the preliminary hearing. Instead, the defendant must make a motion in superior court pursuant to section 1538.5 or 995.