Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA085604 Jack P. Hunt, Judge.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
David Angulo (appellant) pleaded guilty to possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a). He admitted having suffered five felony convictions within the meaning of Penal Code section 1203, subdivision (e)(4) and having served a prison term within the meaning of section 667.5, subdivision (b) for each of these convictions.
All further references to statutes are to the Penal Code unless stated otherwise.
Section 667.5, subdivision (b) provides: “(b) Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.”
Under the terms of appellant’s plea, the trial court granted appellant Proposition 36 probation. (§ 1210.1.) Appellant agreed that the maximum term of imprisonment for the possession offense was three years and that the enhancements under section 667.5, subdivision (b) carried a maximum of two additional years, since the prior prison terms were served in only two separate commitments. On June 10, 2009, the trial court revoked probation and sentenced appellant to the midterm of two years in state prison for the possession offense with an additional two years pursuant to section 667.5, subdivision (b).
Appellant appeals on the grounds that: (1) the trial court violated his Sixth Amendment right to present a defense and his Fourteenth Amendment right to have the opportunity to be heard; and (2) the trial court erred when it imposed two consecutive years under section 667.5, subdivision (b) for a conviction suffered in 2003. Respondent argues that appellant’s claims are not cognizable on appeal because appellant did not obtain a certificate of probable cause.
Appellant also claimed initially that he should be awarded additional conduct credits pursuant to the newly enacted amendment to section 4019. On March 12, 2010, the trial court granted appellant’s request for a correction of the presentence credits.
FACTUAL AND PROCEDURAL BACKGROUND
On January 16, 2009, the trial court placed appellant on formal probation for a period of three years under the terms and conditions of Proposition 36. On March 20, 2009, during a traffic stop, police officers found appellant in possession of a fake driver’s license. On April 2, 2009, appellant’s participation in the Proposition 36 program was terminated and probation was revoked. On April 21, 2009, the trial court found appellant in violation of probation. On June 10, 2009, the trial court sentenced appellant as indicated ante.
During the sentencing hearing, referring to the prior prison term enhancements, defense counsel stated, “Your honor, there is a five-years wash out period that applies here, I believe, on the-on the 666-.” The trial court replied that appellant had previously pleaded guilty and admitted the allegations. Defense counsel stated that the five-year washout period precluded the additional two years because appellant had been on probation under Proposition 36 since 2007, and he had suffered the section 666 conviction in 2003. The trial court ultimately replied that it would not litigate whether there was a washout and reiterated that appellant had admitted the priors at the time of the plea. Defense counsel asserted that an admission did not mean the court could impose an illegal sentence. Defense counsel stated he would appeal the issue.
DISCUSSION
Certificate of Probable Cause
A. Argument
Respondent contends that appellant’s issues regarding the section 667.5, subdivision (b) enhancements to his sentence constitute in substance a challenge to the validity of his plea. Therefore, because appellant failed to obtain a certificate of probable cause, his claims are not cognizable on appeal. In his reply brief, appellant disagrees and argues that his sentence is unlawful and consequently void, causing a jurisdictional defect subject to correction whenever it comes to the attention of either the trial court or the reviewing court. In the alternative, appellant requests that, in the interest of judicial economy, this court treat his appeal as a petition for writ of habeas corpus rather than dismissing his appeal and requiring him to file such a petition.
B. Relevant Authority
Generally speaking, under section 1237.5, a defendant may not bring an appeal from a judgment of conviction entered after a guilty or no contest plea unless he or she has first obtained from the superior court a certificate of probable cause. (People v. Mendez (1999) 19 Cal.4th 1084, 1095 (Mendez).) Despite this prohibition, two types of issues may still be raised on appeal after a guilty plea without first obtaining a certificate of probable cause: search and seizure issues and issues “regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.” (People v. Panizzon (1996) 13 Cal.4th 68, 74–75 (Panizzon); see also Cal. Rules of Court, rule 8.304(b).)
Section 1237.5 provides in pertinent part: “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere... except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”
California Rules of Court, rule 8.304 (b) provides in pertinent part: “(1) Except as provided in (4), to appeal from a superior court judgment after a plea of guilty or nolo contendere or after an admission of probation violation, the defendant must file in that superior court with the notice of appeal required by (a)-the statement required by Penal Code section 1237.5 for issuance of a certificate of probable cause. [¶]... [¶] (3) If the defendant does not file the statement required by (1)... the superior court clerk must mark the notice of appeal ‘Inoperative, ’ notify the defendant, and send a copy of the marked notice of appeal to the district appellate project.”
“The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas.” (Panizzon, supra, 13 Cal.4th at p. 75.) “In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: ‘the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.’ [Citation.] Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5.” (Id. at p. 76.)
The certificate requirements of section 1237.5 “should be applied in a strict manner.” (Mendez, supra, 19 Cal.4th at p. 1098.) The practice of some appellate courts of reaching the merits of an appeal despite an appellant’s failure to comply with the certificate requirements has been strongly criticized. (See id. at pp. 1097–1098; Panizzon, supra, 13 Cal.4th at p. 89, fn. 15 [“the purposes behind section 1237.5 will remain vital only if appellate courts insist on compliance with its procedures”].)
C. Certificate Required
We believe that appellant’s issues on appeal are in substance a challenge to the validity of his plea. Therefore, he was obliged to comply with section 1237.5 and seek a certificate of probable cause from the trial court.
In a case similar to the instant one, People v. Arwood (1985) 165 Cal.App.3d 167 (Arwood), the defendant pleaded nolo contendere to a charge of forcible rape and admitted a prior felony conviction for assault with a deadly weapon involving personal use of the deadly weapon under section 667, which provided for a five-year enhancement for prior serious or violent felonies. (Arwood, supra, at p. 170.) On appeal, the defendant argued that his prior conviction was not a serious felony within the meaning of section 667 and should be stricken. (Arwood, supra, at p. 171.)
The Arwood court agreed with the respondent that the challenge was not cognizable on appeal absent the execution and filing of a certificate of probable cause “because the enhancement was imposed as a result of appellant’s admission of the prior serious felony conviction, and his admission occurred before entry of the nolo contendere plea.” (Arwood, supra, 165 Cal.App.3d at p. 171.) The defendant’s plea constituted a challenge to the validity of his plea “insofar as it encompassed admission of a prior serious felony within the meaning of section 667.” (Id. at p. 172.)
Like Arwood, People v. Breckenridge (1992) 5 Cal.App.4th 1096 (Breckenridge) addressed a sentencing enhancement issue based on the defendant’s admission of a prior felony conviction. (Id. at p. 1098.) The defendant pleaded guilty to the charge of lewd conduct with a child, and admitted a prior serious felony conviction for a similar offense. The court imposed a five-year enhancement for the prior serious felony conviction. On appeal, the defendant sought reversal of the enhancement, contending that his admission of the prior was invalid “due to an inadequate advisement of rights.” (Ibid.) The defendant’s appeal did not include a certificate of probable cause. Breckenridge held that because the challenge was based on a claim of “inadequate advisement of rights, ” it related back to and implicated the validity of his admission of the prior. (Id. at p. 1098.) Accordingly, an appeal without a certificate of probable cause was precluded under section 1237.5. The appeal was dismissed. (Breckenridge, supra, at p. 1098.)
People v. Jones (1995) 33 Cal.App.4th 1087 (Jones) also followed Arwood. In Jones, the defendant pleaded no contest to, inter alia, one count of burglary and two counts of possession of stolen property. (Jones, supra, at p. 1088.) She appealed on the ground that she could not lawfully be convicted of both burglary and receiving the property stolen during the burglary. (Id. at p. 1089; § 496, subd. (a); People v. Jaramillo (1976) 16 Cal.3d 752, 757.) Jones did not reach the merits of the defendant’s claim that the conviction had to be reversed or vacated as unlawful and agreed with the People that a certificate of probable cause was required. (Jones, supra, at p. 1091.) “Claims regarding the illegality of the judgment, whether on jurisdictional or other grounds, are precisely the types of claims which are covered by Penal Code section 1237.5 and require a certificate of probable cause.” (Id. at p. 1092.)
Jones acknowledged a contrary view expressed by the First District Court of Appeal in two cases. In People v. Loera (1984) 159 Cal.App.3d 992, 996 (Loera), the defendant pleaded guilty to receiving stolen property and admitted that the value of the property exceeded $25,000, which entailed a one-year sentence enhancement under section 12022.6. The defendant then challenged on appeal the imposition of the enhancement, arguing that for several reasons, section 12022.6, subdivision (a) could not be used to enhance a sentence based upon a conviction for receiving stolen property. (Loera, supra, at p. 997.) The Loera court held that the defendant was not required to obtain a certificate of probable cause, concluding that the defendant was challenging the sentence as being unlawful and void and was therefore claiming “a jurisdictional defect subject to correction whenever it comes to the attention of either a trial court or a reviewing court. [Citations.]” (Id. at p. 998.) In People v. Corban (2006) 138 Cal.App.4th 1111 (Corban), the court considered whether a probable cause certificate was required where the defendant, who admitted a great bodily injury allegation as part of her plea, argued on appeal that the imposition of the enhancement was unlawful because it was inapplicable to circumstances where child endangerment resulted in death. (Corban, supra, at pp. 1114, 1115–1117.) Corban acknowledged the results in Arwood, Breckenridge, and Jones, and the contrary position in Loera. (Corban, supra, at pp. 115–116.) Corban distinguished Loera as addressing purely legal arguments about the applicability of the enhancement that had “nothing to do with the particular facts of the defendant’s case.” (Corban, supra, at p. 1116.) Corban concluded that the issues in Arwood and Breckenridge were at least partially factual as they related to the plea, whereas Corban’s case and Loera involved purely legal arguments. (Corban, supra, at pp. 1116–1117.)
Section 12022.6 provided that “‘[a]ny person who takes, damages or destroys any property in the commission or attempted commission of a felony, with the intent to cause such taking, damage or destruction, and the loss exceeds: (a) Twenty-five thousand dollars ($25,000), the court shall in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the defendant has been convicted impose an additional term of one year.’” (Loera, supra, 159 Cal.App.3d at p. 999.)
We believe that an analysis of the cases shows that Corban’s distinction does not hold up under scrutiny. Arwood, like Loera and Corban, involved issues of statutory interpretation. In Loera, moreover, the court relied upon the principle that an unauthorized-sentence claim is cognizable on appeal despite a lack of objection below. (Loera, supra, 159 Cal.App.3d at p. 998.) This principle, however, is an exception to the rule that only claims raised by the parties below may be heard on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354.) This principle cannot be employed to sidestep the additional hurdle of section 1237.5, which is triggered by entry of a guilty or no contest plea. In Corban and Loera as well as in Jones, Breckenridge, and Arwood, the defendants’ claims were all directed to elements of their pleas that the defendants had freely admitted. The claims thus challenged the validity of their pleas. We believe the better course is to follow Arwood and Jones and require compliance with section 1237.5 in cases that are, in substance, challenges to the validity of a guilty plea.
The defendant’s claim in Arwood required the court to determine whether the admitted prior felony fell within the statutory definition of prior serious felonies, requiring interpretation of section 1192.7, subdivision (c)(23). (Arwood, supra, 165 Cal.App.3d at pp. 172–173.) The court was also required to interpret the enhancement provisions of Proposition 8. (Arwood, supra, at pp. 174–175.)
In this case, appellant admitted to serving one state prison commitment in 2004 for four separate convictions handed down in 2003 and 2004. He also admitted another prison commitment in 2007. Both commitments were admitted pursuant to section 667.5, subdivision (b). Counsel joined in the waivers and stipulated to a factual basis. “A guilty plea admits every element of the charged offense and constitutes a conviction [citations], and consequently issues that concern the determination of guilt or innocence are not cognizable [on appeal]. [Citations.]” (In re Chavez (2003) 30 Cal.4th 643, 649.) The prior admission of an enhancement is the same as a plea of guilty to a charged offense. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1530; People v. Shirley (1993) 18 Cal.App.4th 40, 46.)
Appellant admitted having suffered the following convictions: (1) A violation of section 666 on March 21, 2003; (2) A violation of Health and Safety Code section 11377, subdivision (a) on April 14, 2004; (3) A second violation of Health and Safety Code section 11377, subdivision (a) on April 14, 2004 (a separate case number); (4) a violation of section 487, subdivision (a) on July 29, 2004; and (5) a violation of section 11377, subdivision (a) on July 3, 2007.
We therefore conclude that appellant’s challenge to the two one-year enhancements following his guilty plea and admission of the enhancements “is properly viewed as a challenge to the validity of the plea itself.” (Panizzon, supra, 13 Cal.4th at p. 79.) Since appellant failed to obtain a certificate of probable cause, his challenge to the imposition of the enhancements under section 667.5, subdivision (b) is barred. (Jones, supra, 33 Cal.App.4th at pp. 1093–1094.)
To the extent appellant may argue that his constitutional claims regarding the alleged denial of his right to be heard and to present a defense are divorced from his claims regarding the propriety of the section 667.5 enhancements that resulted from his admissions, we conclude that the record shows he was able to adequately present his argument about the washout period to the trial court.
In Mendez, our Supreme Court concluded that section 1237.5 and former rule 31(d) should be construed strictly, thus resolving a conflict in the courts of appeal between those courts that had applied these provisions in a rigorous manner and those that had not. (Mendez, supra, 19 Cal.4th at pp. 1097–1098.) Mendez stated that, when a defendant fails to seek and obtain a certificate, the appropriate disposition is dismissal. (Id. at p. 1099.) As noted in People v. Cole (2001) 88 Cal.App.4th 850, 860, footnote 3, “strict application of section 1237.5 works no undue hardship on defendants with potentially meritorious appeals. The showing required to obtain a certificate is not stringent. Rather, the test applied by the trial court is simply ‘whether the appeal is clearly frivolous and vexatious or whether it involves an honest difference of opinion.’ [Citation.]”
Jones noted that some courts, including the Arwood court from the same district as Jones, had adopted the practice of first finding a failure to comply with section 1237.5 and then going on to circumvent the statute by one stratagem or another to reach the merits of the appeal. Jones observed that other courts had found that the better practice was to resist the temptation to discuss the merits. Jones agreed with the latter group, as do we. Otherwise, the courts would encourage defendants who entered guilty pleas to flout section 1237.5 and the rules of court and “‘subvert[] a well-conceived procedural scheme.’” (Jones, supra, 33 Cal.App.4th at p. 1094.) “[I]t is inappropriate and unwise to let expediency outweigh the legislative command that makes compliance with section 1237.5 a condition precedent to an appellate attack on the validity of a guilty plea. To resolve an appeal whether or not it is properly before the court simply because it has been filed, will... only encourage noncompliance with section 1237.5.” (Breckenridge, supra, 5 Cal.App.4th at p. 1101.)
Arwood treated the appeal as a petition for writ of habeas corpus.
DISPOSITION
The appeal is dismissed.
We concur: BOREN P. J., CHAVEZ, J.