CA 3d Dist.: Defendant cannot lose a suppression motion with a magistrate and use the “certified plea process” to Superior Court; the Superior Court must decide both

Defendant cannot lose a suppression motion with a magistrate and then plead for judgment in Superior Court, the “certified plea process.” The Superior Court must decide both issues. People v. Richardson, 156 Cal. App. 4th 574, 67 Cal. Rptr. 3d 552 (3d Dist. 2007):

Penal Code section 859a authorizes a magistrate to accept a guilty or no contest plea from a defendant charged with a felony, then certify the case to the superior court for pronouncement of judgment. The question here is whether a defendant who takes advantage of this certified plea process after the magistrate has denied his or her motion to suppress at the preliminary examination can thereafter seek appellate review of the magistrate’s ruling on the search and seizure issue. We agree with People v. Garrido (2005) 127 Cal. App. 4th 359 that the answer to that question is “no.” Under the rule from People v. Lilienthal (1978) 22 Cal. 3d 891, if a defendant wants to seek appellate review of a search and seizure issue, he or she must raise that issue before a superior court judge acting in that capacity. As we will explain, if a defendant pleads guilty in front of a superior court judge–or anyone else–acting as a magistrate, there is no way the defendant can renew his or her suppression motion or otherwise raise the search and seizure issue in the superior court. Accordingly, appellate review of a search and seizure issue pursuant to section 1538.5, subdivision (m) (section 1538.5(m)) is barred when the certified plea process is used. This result is consistent with the purpose of that process, which is to provide for the expeditious resolution of felony cases.

Filing a suppression motion two years before trial and never asking for a hearing on it and then not objecting to the admission of the subject evidence at trial is a waiver. Judkins v. State, 282 Ga. 580, 652 S.E.2d 537 (2007).*