In a petition for a rehearing of the Superior Court of Appeal, what is the Attorney General's argument that defendant's arguments are not cognizable on appeal?

In a petition for rehearing, the Attorney General argued for the first time that defendant's arguments were not cognizable on appeal because, after his suppression motion was denied at his preliminary hearing, he had failed to renew the motion in the trial court and obtain a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b); People v. Richardson (2007) 156 Cal.App.4th 574, 595-596.) The Attorney General

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acknowledged that this new argument was contrary to the prior express concession in respondent's brief that this court should review the legality of the search¹ and was not raised in oral argument during which the merits of the appeal were strongly contested. As the Attorney General belatedly argued, a challenge to the court's jurisdiction can be made at any time and the People cannot waive the certificate of probable cause requirement "by silence, or even by affirmative consent to the appeal proceeding in spite of noncompliance with this rule." (People v. Ballard (1985) 174 Cal.App.3d 982, 985.) Accordingly, this court reluctantly granted the petition for rehearing.

At that time, however, we also requested briefing on whether this court should treat the appeal as a petition for a writ of habeas corpus. (People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4.) Defendant argued that we should do so but, in the interest of caution, filed a separate petition for writ of habeas corpus, which has been consolidated with the present appeal. On April 19, 2016, this court issued an order to show cause why defendant's petition should not be granted. With the fully briefed petition now pending before us, we shall dismiss the appeal based on the absence of a certificate of probable cause and grant the petition for writ of habeas corpus.