Filed 4/24/15 P. v. Capps CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065527
Plaintiff and Respondent,
v. (Super. Ct. No. SCS270287)
ANNA K. CAPPS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Theodore
M. Weathers, Judge. Affirmed.
Sheila Quinlan, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Warren J.
Williams, Deputy Attorneys General, for Plaintiff and Respondent.
BACKGROUND
At approximately 1:45 a.m. on February 7, 2014, Officer Sam Sellers stopped a
car at an intersection in Coronado. Defendant and appellant Anna K. Capps was a
passenger. Officer Sellers obtained identification, registration and insurance information
from the driver. Defendant was unable to produce a driver's license. Officer Sellers
asked for, and obtained, her full name and birth date.
Dispatch informed Officer Sellers that defendant could have a felony warrant for
her arrest because she had several aliases. Defendant provided her aliases and social
security number. Existence of a felony warrant was confirmed, and defendant was
arrested. While defendant was in the back of the police car, Officer Sellers searched the
passenger area of the car and found a purse on the floorboard. Inside the purse, he found
a purple tin that contained a glass pipe and methamphetamine.
On February 11, 2014, the San Diego County District Attorney filed a felony
complaint charging defendant with possession of methamphetamine (Health & Saf. Code,
§ 11377, subd. (a)) and possession of narcotics paraphernalia (Health & Saf. Code,
§ 11364.1, subd. (a)).
Defendant filed a motion to suppress evidence under Penal Code section 1538.5.
After her preliminary examination and suppression motion hearing, defendant was bound
over for further proceedings. On the same day, defendant pled guilty to the possession of
methamphetamine charge (count 1), and the prosecution dismissed the paraphernalia
charge (count 2). The court immediately sentenced defendant to three years' probation.
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A timely notice of appeal was filed, but defendant failed to file a certificate of
probable cause. Pursuant to a petition for writ of habeas corpus, the trial court granted
defendant's request for a certificate of probable cause.
DISCUSSION
On appeal, defendant contends the trial court erred in denying her motion to
suppress because her detention was unduly prolonged and the search of the car was not a
valid search incident to her arrest. The People respond that defendant may not assert
these arguments because she did not renew the motion to suppress following being held
to answer and the filing of an information. We agree with the People.
There is no distinction between this case and People v. Richardson (2007) 156
Cal.App.4th 574, 584-585. Richardson makes clear that "a defendant who has pled guilty
before a magistrate following the magistrate's denial of his or her suppression motion
cannot raise the search and seizure issue again in the superior court. Thus—unless an
exception to the Lilienthal [People v. Lilienthal (1978) 22 Cal.3d 891] rule is recognized
in cases involving a guilty plea under [Penal Code] section 859a—if a defendant who has
lost a suppression motion before a magistrate wants to pursue appellate review of the
search and seizure issue, he or she cannot plead guilty in front of the magistrate. Instead,
he or she must proceed with the preliminary hearing (or waive his or her right to a
preliminary hearing) and, after being held to answer, allow an information to be filed (or
allow the complaint to be deemed an information). Then, he or she can either move to
dismiss the information under [Penal Code] section 995 or renew his or her suppression
motion before trial under subdivision (i) of [Penal Code] section 1538.5 and withhold his
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or her guilty plea until after his or her motion is denied a second time by the superior
court." (Id. at p. 593.) Without renewal of the motion to suppress, we have no record
from which we can review the issues raised.
Defendant urges us to find her counsel was ineffective because counsel failed to
file a renewed motion to suppress following the preliminary hearing, and before she pled
guilty. "'In determining whether counsel's performance was deficient [under Strickland v.
Washington (1984) 466 U.S. 668], a court must in general exercise deferential
scrutiny . . .' and must 'view and assess the reasonableness of counsel's acts or omissions
. . . under the circumstances as they stood at the time that counsel acted or failed to act.'"
(People v. Scott (1997) 15 Cal.4th 1188, 1212.) On appeal, we will reverse a conviction
only if the record affirmatively discloses that counsel had no rational tactical purpose for
his act or omission. If the record contains no explanation for the challenged behavior, we
will reject the claim unless counsel was asked for an explanation and failed to provide
one or unless there can be no explanation. (People v. Hart (1999) 74 Cal.App.4th 479,
486.)
Defendant's argument that counsel was incompetent fails on multiple grounds.
First, we note the prosecutor and defense counsel conferred after defendant was held to
answer. Very soon thereafter, on the same day, defendant entered a plea of guilty and
obtained a favorable sentence of probation for three years, dismissal of count 2 and credit
for time served. As the People note, the availability of this plea offer, which was
accepted, may have been dependent on not pursuing a further motion to suppress.
(People v. Hinds (2003) 108 Cal.App.4th 897, 902.) Defendant has provided no record
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from which we can conclude that there was no rational tactical purpose for counsel's act
or omission.
In any event, we conclude any error in failing to renew the motion to suppress was
harmless in that defendant was not prejudiced by the failure to renew the motion to
suppress.
A warrant check is permissible during a traffic stop if it can be completed within
the same period necessary to discharge the duties incurred by virtue of the traffic stop.
(People v. Brown (1998) 62 Cal.App.4th 493, 498.) Here, Officer Sellers ran the names
of defendant and the driver within minutes of stopping the car. The stop was then
prolonged because police dispatch indicated there was a possible felony warrant for
defendant's arrest. It was not unreasonable for Officer Sellers to then focus on
confirming whether a felony warrant existed, which it did, and defendant was arrested.
With respect to the search of defendant's purse, we note that although defendant
was handcuffed, the driver of the vehicle, who was not restrained, had access to it once
he reentered the vehicle and, indeed, remained in and near the vehicle during defendant's
arrest. Given the time of night, the lack of restraint of the driver, and defendant's felony
arrest warrant, we conclude a search of the purse for weapons was reasonable. (Michigan
v. Long (1983) 463 U.S. 1032, 1049; Arizona v. Gant (2009) 556 U.S. 332, 346-347.)
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DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
O'ROURKE, J.
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