THE PEOPLE v. MICHAEL SALAZAR (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Michael Salazar and Alfredo Salazar appeal from a judgment of conviction following plea agreements.   They contend the magistrate judge erred in partially denying their motion to suppress evidence under Penal Code section 1538.5.¹  After examining the record, we conclude the appeal must be dismissed.

STATEMENT OF THE CASE

An information charged appellants with receiving stolen property in violation of section 496, subdivision (a).   Michael Salazar was also charged with operating a chop shop in violation of Vehicle Code section 10801.   Appellants initially pled not guilty, but both later negotiated pleas of nolo contendere to receiving stolen property.   The trial court sentenced appellants to three years of probation.   Both appellants filed timely notices of appeal.

STATEMENT OF THE FACTS

On October 25, 2008, Los Angeles County Deputy Sheriff Stacey Halvorsen noticed a car parked on the street.   After running the license plate, she discovered it had been reported as stolen.   She contacted the owner who came to the scene to examine and reclaim his car.   The owner informed the deputy that the car was missing its engine and transmission, and that some items that were stored in the car, such as a paintball gun and cylinders for the gun, were also missing.   After Deputy Halvorsen left the scene, the owner contacted her and informed her that when he had the car towed, he noticed an oil trail which led from the car to a nearby residence.

The next day, Deputy Sheriff Mark Machanic searched the residence pursuant to a warrant, and found items from the stolen vehicle.   Deputy Machanic spoke to the homeowner and to his son, who implicated Alfredo Salazar in the removal of engine parts and other items from the car.   Deputy Machanic and two other officers then went to the Salazar residence.   After allegedly being invited in by a family member, they conducted a “protective sweep” of the house and garage for their safety.   While doing so, the officers noticed car engines in the garage and a paintball gun in one of the rooms.

The officers then contacted the owner of the house, Alfredo Salazar, Sr. After speaking with Deputy Machanic, Salazar, Sr. agreed to sign a consent to search form.   After the consent form was signed, officers located stolen property, including five car engines in the garage, and a paintball gun and cylinders for the gun in Michael Salazar's bedroom.

Appellants' attorney then arranged for them to be interviewed at the police station.   Appellants denied knowing the property was stolen and denied being involved with chop shops.   After their interviews, both appellants were arrested.

DISCUSSION

Appellants raise only one issue on appeal.   They contend their convictions should be reversed because the magistrate judge erred in partially denying their motion to suppress evidence recovered during the police search of the Salazar residence.   The appellate record shows that on August 3, 2009, the magistrate judge denied their suppression motion except as to the paintball gun and cylinders, which he found to be beyond the scope of the consent.   The record, however, does not show that appellants renewed their challenge to the validity of the police search in the superior court “either by making a suppression motion (§ 1538.5) or a dismissal motion (§ 995) for review of the magistrate's ruling.”  (People v. Terrell (1999) 69 Cal.App.4th 1246, 1252.)  “[Appellants'] failure to renew [their] challenge in the superior court precludes appellate review of [their] claim of error because ‘․ it would be wholly inappropriate to reverse a superior court's judgment for error it did not commit and that was never called to its attention.’ ”  (Ibid., quoting People v. Lilienthal (1978) 22 Cal.3d 891, 896;  accord People v. Garrido (2005) 127 Cal.App.4th 359, 361 [appellant may not seek appellate review of denial of suppression motion by magistrate judge unless “the motion has been renewed in the superior court where the court is not acting as a magistrate”].)   Accordingly, appellants have forfeited their claim of error.

DISPOSITION

The appeal is dismissed without prejudice to any rights appellants may have to relief by way of a petition for writ of habeas corpus.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

We concur:

FOOTNOTES

FN1. All further statutory citations are to the Penal Code, unless otherwise stated..  FN1. All further statutory citations are to the Penal Code, unless otherwise stated.

EPSTEIN, P. J. SUZUKAWA, J.