Filed 4/24/17 P. v. Pitts CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Siskiyou)
----


THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY MARK PITTS,

Defendant and Appellant.
C082919

(Super. Ct. No. MCYKCRBF201308252)



Defendant pleaded no contest to possession of a billy club. (Pen. Code, § 22210.) On appeal, he contends the magistrate improperly denied his motion to suppress. (§ 1538.5.) He also contends the trial court’s approved jury instruction erroneously instructed the jury the weapon possessed was a billy club. The People assert defendant’s contentions are procedurally improper because he failed to (a) renew his motion to suppress in the trial court prior to his no contest plea, and (b) obtain a certificate of probable cause on appeal. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with felony possession of a billy club. (§ 22210.) In July 2014, after a combined preliminary hearing and a hearing on defendant’s motion to suppress evidence, the trial court denied defendant’s motion to suppress evidence per section 1538.5. At no time after the filing of the information did defendant renew his motion to suppress that was denied by the magistrate.
On January 12, 2016, the trial court approved over defendant’s objection the prosecution’s proposed jury instruction, based on CALCRIM No. 2500. Later that day, defendant pleaded no contest to violating section 22210, with the understanding that the trial court would reduce the offense to a misdemeanor, per section 17, subdivision (b). The prosecution opposed the reduction. The trial court reduced the offense to a misdemeanor and imposed three years’ probation, with 365 days incarceration.
Defendant timely filed a notice of misdemeanor appeal. (§ 1466, subd. (b)(1).) In September 2016, we granted the superior court’s request to transfer the case to this court because it was a felony case for purposes of appeal. (People v. Nickerson (2005) 128 Cal.App.4th 33.)
DISCUSSION
I
Direct appellate review of a magistrate’s denial of a defendant’s section 1538.5 motion to suppress evidence obtained by a search is available only when a defendant “either renew[s] the motion in the trial court or challenge[s] the legality of the search in a motion to dismiss under section 995. [Citations.]” (People v. Hawkins (2012) 211 Cal.App.4th 194, 199-200, fns. omitted; see also People v. Lilienthal (1978) 22 Cal.3d 891, 896.) Trial court unification has not altered this rule. (People v. Hinds (2003) 108 Cal.App.4th 897, 900.) Because defendant did not renew his suppression motion in the trial court prior to changing his plea, he has failed to preserve the issue of the legality of the search for appeal and the judgment must be affirmed.
II
Absent the issuance of a certificate of probable cause, on appeal a defendant may only challenge the denial of a motion to suppress evidence or post-plea issues not undermining the validity of the plea. (People v. Panizzon (1996) 13 Cal.4th 68, 74.) Section 1237.5 should be applied in a “strict manner” and a defendant “may not obtain review of certificate issues unless he has complied with section 1237.5.” (People v. Mendez (1999) 19 Cal.4th 1084, 1098-1099.) Because the record contains no certificate of probable cause, the trial court’s rulings at the motion in limine hearing regarding jury instructions cannot be raised on appeal.
DISPOSITION
The judgment is affirmed.



/s/
Blease, J.


We concur:



/s/
Raye, P. J.



/s/
Murray, J.