Ahern

Appellant Suellyn Jayne Rumachik pleaded guilty to conspiracy to manufacture and sell methaqualone and to manufacture of *29 methaqualone. Appellant Royce Bell pleaded guilty to conspiracy to manufacture and sell methaqualone. Appellant William Joseph Ahern pleaded guilty to manufacture of methaqualone.

Prior to entry of the guilty pleas appellant Rumachik moved to suppress evidence pursuant to Penal Code section 1538.5; appellant Ahern moved to suppress the officers’ testimony and quash the warrant because of the destruction of the original surveillance notes and appellant Bell moved to set aside the information pursuant to Penal Code section 995 on the ground of insufficient evidence to connect him to the charged offenses. The record does not show that either Ahern or Bell filed a section 1538.5 motion. However, the minutes show that a hearing was held on the section 1538.5 motion and the section 995 motion. At the hearing two defendants, not parties to this appeal, asked to join in the motions. The minutes state, “Court rules that the cause is joined in by all defendants, except for the 995 P.C.” It is not clear whether this included Ahern and Bell but at the time of…

I concur in the judgment of affirmance only.

The majority concludes that the Hitch 1 issue is not reviewable on these appeals from judgments of conviction entered on guilty pleas because a certificate of probable cause was not obtained. In my view Penal Code section 1538.5, subdivision (m) 2 preserves the issue for appellate review.

As a general rule, section 1538.5 “can be properly employed only to shield a defendant from Fourth Amendment violations; it has no part in protecting against Fifth Amendment infringements . . . .” (People v. Superior Court (Zolnay) (1975) 15 Cal.3d 729, 734 [ 125 Cal.Rptr. 798 , 542 P.2d 1390 ]; see also People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 6 [ 135 Cal.Rptr. 786 , 558 P.2d 872 ].) But that rule does not apply where the defendant seeks to suppress tangible evidence obtained as a result of an unlawfully obtained admission or confession. (People v. Carter (1980) 108 Cal.App.3d 127, 130 [ 166 Cal.Rptr. 304 ]; People v. Superior Court (Mahle) (1970) 3 Cal.App.3d 476, 484 [ 83 Cal.Rptr. 771 ], cited with approval in People v. Superior Court (Zolnay), supra, 15 Cal.3d at pp. 733-734.) In other words, although section 1538.5 cannot be employed…

[Opinion certified for partial publication. [1] ]

OPINION

CALDECOTT, J. [*]

Appellant Suellyn Jayne Rumachik pleaded guilty to conspiracy to manufacture and sell methaqualone and to manufacture of methaqualone. Appellant Royce Bell pleaded guilty to conspiracy to manufacture and sell methaqualone. Appellant William Joseph Ahern pleaded guilty to manufacture of methaqualone.

Prior to entry of the guilty pleas appellant Rumachik moved to suppress evidence pursuant to Penal Code section 1538.5; appellant Ahern moved to suppress the officers' testimony and quash the warrant because of the destruction of the original surveillance notes and appellant Bell moved to set aside the information pursuant to Penal Code section 995 on the ground of insufficient evidence to connect him to the charged offenses. The record does not show that either Ahern or Bell filed a section 1538.5 motion. However, the minutes show that a hearing was held on the section 1538.5 motion and the section 995 motion. At the hearing two defendants, not parties to this appeal, asked to join in the motions. The minutes state, "Court rules that the cause is joined in by all defendants, except for the 995 P.C." It is…