Filed 8/31/15 P. v. Burt CA1/4
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


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


         Defendant 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 letter conceding Burt’s failure to preserve 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 American 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. As the officers passed, a
third African 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.


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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. Bottomley did not see anything change hands
and could not say if the man on the bike was a buyer or a seller, and the officers made no
attempt to stop him.
       Approaching the car, however, Bottomley smelled a strong scent of marijuana. He
believed that, with this added information, he had probable cause to search the car. Prior
to searching the car, however, Bottomley asked Burt’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-defendant.
       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 into 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 console.
       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 pursuant 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 not


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have a reasonable suspicion of criminal activity when he approached Burt’s car. The
People argued that the detention was justified by Bottomley’s observation 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 held 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 contest 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 has been forfeited under People
v. Lilienthal (1978) 22 Cal.3d 891. We agree and will affirm on that basis, without
reaching the merits.
       Section 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 predicated upon a plea of guilty.
Review on appeal may be obtained by the defendant provided that at some stage of the
proceedings 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
arguably 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.”


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(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.” (Ibid.) 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 (2007) 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 decide issues not preserved for review
(People v. Williams, supra, 17 Cal.4th 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 when 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 pp. 888–889 [minor 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 Court 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 important 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 raises a constitutional issue, would require a


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review of the record, may require additional fact-finding, and cannot easily be addressed
on appeal. The issue is also highly situational and requires nothing more than an
application of settled law to the facts presented, once they are fully fleshed out.
Accordingly, because 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.




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