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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