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Filed 8/31/15 P. v. Burt CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent,

v. RAYMOND D. BURT, Defendant and Appellant. A141818
(Sonoma County Super. Ct. No. SCR639559)

D efendant Raymond Burt appeals the denial of a suppression motion (Pen

. Code
, § 1538.5) filed prior to his plea of no contest, conviction and sentence

. 1 Burt’s appointed
counsel has submitted a let ter conceding Burt’s failure to p reserve the issue he wishes to appeal, but asking nonetheless that the court exercise its discretion to reach the merits
under People v. Williams (1998) 17 Cal.4th 148 , and In re Sheena K . (2007) 40 Cal.4th
875 ( Sheena K. )

. Having considered Burt’s request, we decline his invitation to decide the appeal on the merits. We therefore affirm the judgment

.

FACTUAL AND PROCEDURAL BACKGROUND
Around 6 :00 p.m. on September 4, 2013, Raymond Burt and his co

- defendant
, both African Am erican males, sat in Burt’s pearl white BMW , within 1,000 feet of an elementary school, as Sonoma County Sheriff Deputies Bottomley and Engram passed by in their patrol car on the driver’s side and peered into the car

. A s the officers passed, a
third Afri can American male on a bike leaned into the window of the passenger side of

1 Statutory references are to the Penal Code unless otherwise specified.2

the car. Bottomley believed he had just witnessed a hand

- to

- hand drug transaction. At
that moment
, the hand

- to

- hand transaction suspected by Bottomley was the only basis for

a detention. As Bottomley turned his patrol car around and began to pull up behind Burt’s parked car, the man on the bike rode off

. Bo ttomley did not see anything change hands and could not say if the man on the bike was a buyer or a seller
, and the offic ers made no attempt to stop him. Approaching the car, however, Bottomley smelled a strong scent of marijuana. H e believed that, with this added information
, he had probable cause t o search the car. Prior to searching the car, however, Bottomley asked B urt’s permission
, which Burt declined

. Bottomley and Engram ordered both men out of the car and told them to sit on the curb as Bottomley’s partner tried to get a positive identification on the co

- defenda n t. Santa Rosa Police Officer Collins arrived and told the deputies there had been a report that “ two black males in a pearl white BMW ” had been seen nearby brandishing a
firearm

. (§ 417.) Bottomley shined his light in to the car, and pointed at the center console which
was locked. When he asked Burt for the key to open it, Burt replied he did not have the key and that he had only owned the vehicle for a month and a half
, and during that time
he never possessed a key to the center cons ole. Bottomley decided to search Burt’s car and was able to access the center console by prying it open. He discovered two loaded firearms inside
, one of which had been reported stolen in 2011. Bottomley also found a small amount of marijuana (“about the
size of

. . . a large marble”) in a pill bottle on the console , but found no indicia of drug
sales. Burt was arrested and booked into custody. On September 26, 2013, Burt filed a motion to suppress evidence pursuan t to section 1538.5. The evidence to be suppressed consisted of “ all tangible and intangible evidence, to include the officers’ observations, obtained as the result of the illegal detention of Mr. Burt’s person due to a warrantless and illegal search and seizure of his person and automobile.” Burt argued the detention was illegal because Bottomley did not3

have a reasonable suspicion of criminal activity when he approached Burt’s car. The People argued that the detention was justified by Bottomley’s obser vation of what appeared to be a hand

- to

- hand drug transaction, and the search did not occur until after Bottomley smelled the marijuana and after he had obtained the information about the earlier brandishing incident

. On October 7, 2013, a magistrate hel d a preliminary hearing concurrently with the hearing on the section 1538.5 motion. That motion was denied and Burt was bound over
for trial. Burt failed to renew the section 1538.5 motion before the trial judge

. On November 7, 2013, Burt pleaded no con test to unlawfully possessing a firearm within 1,000 feet of a school ( § 626.9 , subd. (b)). And on April 17, 2014, he was sentenced to three years (suspended) and was granted five years of probation on the condition that he complete a drug rehabilitation program. DISCUSSION
Burt appeals
, raising only one issue : the validity of the detention under the Fourth
Amendment

. The Attorney General argues that this issue ha s been forfeited under People
v. Lilienthal (1978) 22 Cal.3d 891. We agree and will affirm on that basis, without reaching the merits.
S ection 1538.5
, subdivision (m) provides that “[a] defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the conviction is pr edicated upon a plea of guilty. Review on appeal may be obtained by the defendant provided that at some stage of the proceeding s prior to conviction he . . . has moved for the . . . suppression of the
evidence. ”
Under the plain language of subdivision (m), it is sufficient that a motion be made “at some stage of the proceedings.” In People v. Lilienthal
, supra , 22 Cal.3d 891, however, the California Supreme Court held
, even though the defendant in that case had arguabl y satisfied the procedural prerequisites of section 1538.5 , subdivision (m) by bringing his suppression motion at a preliminary hearing held in municipal court, the

statute “ should be interpreted to require that the matter be raised in the superior court.”4

( Id . at p. 896.) Lilienthal held that subdivision (m) should not be interpreted to allow a defendant to bypass the superior court, “for 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.” ( I

bi d

. ) Because the defendant in Lilienthal filed a section 995 motion based on the alleged illegal search, his appeal was allowed to proceed. But absent such a motion or a renewed suppression motion, an appeal is foreclosed. (See People v.
Richardson (200 7) 156 Cal.App.4th 574, 584

– 589; People v. Garrido (2005) 127 Cal.App.4th 359 [because the motion to suppress evidence was made before certification of the case to the superior court, the requirement in Lilienthal that the motion be made “at some stage of the proceedings” was not met]. )
Burt concedes that he failed to renew his suppression motion after he was bound
over for trial and that the issue has been forfeited under Lilienthal . He argues, however, that appellate courts have broad discretion to dec ide issues not preserved for review ( People v. Williams
, supra , 17 Cal.4 th at p. 161, fn. 6 ) and are especially willing to exercise that discretion where a forfeited claim involves an important issue of constitutional law or some other substantial right. ( Sheena K.
, supra , 40 Cal.4th at

p. 887 , fn. 7 .) Burt is correct, of course, that w hen the issue on appeal presents a pure question of law, even though forfeited, it can in some circumstances be heard by the appellate court. ( See Sheena K., supra , 40 Cal.4th at p p

. 888

– 889 [ m inor challenged probation condition requiring she not associate with anyone disapproved of by her probation officer as unconstitutionally vague]

. ) In Sheena K.
, the forfeited claim was nevertheless addressed by the Supreme Co urt which held the probation condition “ easily remediable on appeal by modification of the condition.” ( Id. at p. 888.) Sheena K . emphasized, however, that

“ ‘ discretion to excuse forfeiture should be exercised rarely and only in cases presenting an impo rtant legal issue. ’ ” ( Id. at p. 887, fn. 7.)
We decline to exercise our discretion to reach the merits of Burt’s Fourth
Amendment claim in this case. His section 1538.5 challenge is premised on an unlawful search and seizure theory which
, though it rais es a c onstitutional issue
, would require a5

review of the record
, may require additional fact

- finding
, and cannot easily be addressed

on appeal. The issue is also highly situational and r equires nothi ng more than an application of settled law to the facts presented , once they are fully fleshed out

. Accordingly, b ecause Burt asks us to address an issue that does not involve a “pure question of law” and would not provide guidance in future cases if we were to decide it here, we decline to reach the merits.
DISPOSITION
The judgment is affirmed.

_________________________ Streeter, J.

We concur:

_________________________ Reardon, Acting P.J.

_________________________ Rivera, J.