People v. Ryan CA1/3

Filed 9/30/16 P. v. Ryan CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A144078 v. REGINALD DEON RYAN, (Solano County Super. Ct. No. VCR218594) Defendant and Appellant.

Defendant Reginald Deon Ryan was convicted by a jury of firearms charges and sentenced to five years in state prison. On appeal, he claims the warrantless search of the vehicle he was driving was unconstitutional because the faint odor of unburned marijuana did not provide probable cause for the search. We disagree and affirm. PROCEDURAL BACKGROUND The Solano County District Attorney filed a three-count felony complaint in August 2013 charging defendant with possession of a firearm by a felon (Pen. Code,1 § 29800, subd. (a)(1)), carrying a concealed weapon in a vehicle as a person previously convicted of a felony (§ 25400, subd. (a)(1)), and carrying a loaded firearm in a vehicle (§ 25850, subd. (a)). The district attorney further alleged that defendant had served two prior prison terms within the meaning of section 667.5, subdivision (b). At the preliminary hearing, defendant moved to suppress the handgun found in the vehicle he was driving. (§ 1538.5.) The magistrate denied the motion and held defendant

1 Further statutory references are to the Penal Code unless otherwise specified.

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to answer on the charges alleged in the complaint. Defendant thereafter moved to dismiss the information on the ground the magistrate erred in denying his motion to suppress. (§ 995.) The trial court denied the motion. In July 2014, a jury found defendant guilty of all three firearm counts alleged in the information. The trial court separately found both prior prison term allegations true. The court sentenced defendant to serve a total of five years in state prison, consisting of the upper-term of three years for possession of a firearm by a felon, with stayed terms for the other two counts, plus one year each for the prior prison terms. Defendant timely appealed. DISCUSSION Defendant’s sole contention on appeal is that the odor of unburned marijuana did not provide probable cause for the warrantless search of the vehicle he was driving. A. Standard of Review A defendant may challenge the reasonableness of a search and seizure by making a motion to suppress under section 1538.5 at the preliminary hearing. (People v. McDonald (2006) 137 Cal.App.4th 521, 529.) If the motion to suppress is denied, the defendant may renew the challenge by filing a section 995 motion in the trial court. (Ibid.) That is the course of action defendant followed here. “When a motion to suppress evidence under section 1538.5 is denied at the preliminary hearing and reviewed by the trial court in a section 995 proceeding, even though the appeal is from the trial court, we, in effect, review the magistrate’s decision directly, deferring to the magistrate’s factual findings.” (People v. Hawkins (2012) 211 Cal.App.4th 194, 200.) We draw all presumptions in favor of the magistrate’s factual findings and defer to any express or implied factual findings supported by substantial evidence. (Ibid.; People v. McDonald, supra, 137 Cal.App.4th at p. 529.) We exercise our independent judgment in determining whether the search or seizure was reasonable. (People v. McDonald, supra, at p. 529.)