People v. Rhodes CA5

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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