Filed 11/19/14 P. v. Graves-Wright CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A140007
v.
TAREY SHANNON GRAVES-WRIGHT,                                         (Solano County
                                                                     Super. Ct. No. FCR298692)
         Defendant and Appellant.


         Following a jury trial, defendant Tarey Shannon Graves-Wright was convicted of
felony methamphetamine possession and misdemeanor possession of a smoking device.
The sole issue she raises on appeal is that the superior court judge sitting as a magistrate
at her combined preliminary hearing and motion to suppress erred by not granting her
suppression motion. We hold defendant forfeited the issue by failing to renew her
motion in superior court, and affirm the judgment.
                                               I. BACKGROUND
A. Pretrial Proceedings
         Defendant was charged by felony complaint with possession of methamphetamine
(Health & Saf. Code, § 11377, subd. (a); count 1) and misdemeanor possession of a
smoking device (Health & Saf. Code, § 11364.1, subd. (a); count 2). The complaint
further alleged in connection with count 1 that defendant had suffered a prior conviction
for which she served a prison term ending within five years of the charged offense. (Pen.
Code,1 § 667.5, subd. (b).)
           On May 3, 2013, following the conclusion of a preliminary hearing and denial of
a motion to suppress pursuant to section 1538.5, defendant was held to answer on the
charges. The hearing was held before Judge Mike Nail, a superior court judge sitting as a
magistrate. Judge Nail proposed, and the parties agreed, to deem the complaint an
information, and to proceed forthwith with the arraignment. Defendant pleaded not
guilty to both charges and denied the alleged prior conviction and prison term.
       Defendant’s jury trial began on August 19, 2013, with superior court Judge Robert
Bowers presiding. Prior to trial, the defense moved in limine to exclude (1) evidence of
defendant’s prior criminal record and (2) any evidence not previously disclosed to the
defense. The defense did not renew the motion to suppress at any time after the
complaint was deemed to be the information.
B. Trial Evidence
       On February 26, 2013, at approximately 11:38 p.m., Fairfield Police Officer
Richard Mroz stopped a vehicle for speeding after pacing it driving at about 43 miles per
hour in a 30-mile-per-hour speed zone. As he walked to driver’s side of the vehicle he
noticed there were five people in it, including defendant who was seated in the left rear
passenger seat directly behind the driver. He asked each person in the car to provide their
identification. Officer Mroz ran warrant checks on the passengers as well as the driver.
Within “a couple minutes,” the officer learned the driver was on parole.
       When Officer Mroz learned the driver was on parole for burglary, he decided to
conduct a parole search, and called for a cover unit. The cover officers arrived
“relatively quickly. . . . Within a couple minutes.” Once the cover officers arrived,
Officer Mroz ordered the driver and then the passengers to exit the vehicle one at a time.
The officer patted down the driver and searched his person, before having him sit on the
curb. As the other individuals alighted from the vehicle, Officer Mroz asked them

       1
           All statutory references are to the Penal Code unless otherwise indicated.


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whether they had anything illegal on their person, and for permission to search them. He
pat-searched the passengers, and had each of them sit on a nearby curb.
       Defendant was the last passenger asked to exit the vehicle. The officer had
observed that defendant had been holding a purse in her lap the entire time she was in the
vehicle. When she got out of the vehicle, she put the purse on the backseat and left it
there.2 Defendant denied possessing anything illegal. According to Officer Mroz, he
then asked her in a noncoercive manner if he could search both her person and her
property, and she consented. The officer did not find anything on her person, but he
found a glass pipe and a small plastic bag containing 0.69 grams of methamphetamine
(approximately seven doses) inside an eyeglass container in defendant’s purse. The purse
also contained credit cards and a Social Security card in defendant’s name. The defense
called no witnesses, and argued to the jury there was insufficient evidence defendant
knew contraband items were in her purse.
C. Verdict, Sentencing, and Appeal
       On August 21, 2013, the jury convicted defendant of both charges. At a bifurcated
proceeding, the trial court found a prior conviction enhancement to be true. The court
placed defendant on Proposition 36 probation for three years. Defendant timely
appealed.
                                    II. DISCUSSION
       Defendant’s sole argument on appeal is that the trial court erred in not granting her
motion to suppress. Defendant failed to preserve that issue for appellate review.
       To preserve a search and seizure issue for appeal, a defendant is required to raise
the issue before the trial court; a motion to suppress brought before the magistrate at the
preliminary hearing is not sufficient. (People v. Lilienthal (1978) 22 Cal.3d 891, 896
(Lilienthal).) To satisfy this requirement, a defendant whose motion to suppress evidence
is denied at the preliminary hearing must renew his or her section 1538.5 motion at a


       2
        Officer Mroz testified he would not have allowed defendant to exit the vehicle
with her purse in any event, due to potential officer safety issues.


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special hearing in the trial court (§ 1538.5, subd. (i)) or move to set aside the information
(§ 995) on Fourth Amendment grounds. (Lilienthal, at pp. 896–897.) The fact that the
magistrate and the trial judge are judges of the same court is immaterial to the application
of this rule. (People v. Richardson (2007) 156 Cal.App.4th 574, 586–587, 589 [applying
Lilienthal rule following unification of municipal and superior courts].) Defendant did
not renew her motion to suppress or raise the search and seizure issue in a motion to set
aside the information at any time after the preliminary hearing.
       Defendant acknowledges the foregoing rule but maintains it is inapplicable to her:
“For whatever reason, in Solano County, in this case, the judge that heard appellant’s
preliminary hearing and her concurrent motion to suppress, is the same judge that, at the
conclusion of the preliminary hearing, deemed the complaint to be the information, and
arraigned appellant on that information. Lilienthal is inapplicable as it would have been
nonsensical for appellant to relitigate the suppression motion before the same judge that
denied it in the first place.”
       Defendant was not required to relitigate the suppression motion before Judge Nail.
Had she renewed the motion at the time of her arraignment on the information, the
superior court would have been obligated to select a judge other than Judge Nail to rule
on it. (See People v. Hoffman (2001) 88 Cal.App.4th 1, 3.) In fact, the case had already
been assigned to Judge Bowers at that time, and defendant could have renewed the issue
by motion under section 1538.5 or 995 in his department at any time after the complaint
was deemed to be the information, up to and including the time of trial. Having failed to
take that step, the search and seizure issue she raises is not cognizable in this court.
                                    III. DISPOSITION
       The judgment is affirmed.




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                                _________________________
                                Margulies, Acting P.J.


We concur:


_________________________
Dondero, J.


_________________________
Banke, J.




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