Opinion
F074593
03-15-2018
THE PEOPLE, Plaintiff and Respondent, v. ASHLAN ALYCE LABOSTRIAGEE, Defendant and Appellant.
Stratton S. Barbee for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Barton Bowers, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF47888)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge. Stratton S. Barbee for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Barton Bowers, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Poochigian, J. and Franson, J.
-ooOoo-
Appellant Ashlan Alyce Labostriagee pled no contest to bringing drugs into a jail in violation of Penal Code section 4573, subdivision (a). On appeal, she contends she did not violate section 4573 because she had a "recommendation" to use medical marijuana. We affirm.
All further statutory references are to the Penal Code, unless otherwise indicated.
FACTS
On August 1, 2015, Correctional Officer Jared DeWoody was assigned to the vehicle entrance gate at the Sierra Conservation Center (SCC) in Tuolumne County. At approximately 9:10 a.m., when Labostriagee arrived for a visit, DeWoody smelled marijuana and contacted officer Nall. During a consent search of the car, the officers found a smoking pipe, approximately two grams of marijuana in Labostriagee's purse, and a marijuana cigarette in the ashtray. Labostriagee presented a valid medical marijuana card.
Three signs that identify items prohibited at the SCC, including medical marijuana, are posted on the road that leads to the SCC. One of the signs is located at the entrance.
On August 12, 2015, the Tuolumne County District Attorney filed a complaint charging Labostriagee with bringing marijuana into the SCC in violation of section 4573.
On September 2, 2015, after the preliminary hearing, the complaint was deemed to be an information.
On May 3, 2016, the court denied Labostriagee's motion to dismiss pursuant to section 995
On June 27, 2016, Labostriagee pled no contest to violating section 4573 in exchange for an indicated sentence by the court of probation.
On October 24, 2016, the court suspended imposition of sentence for five years and placed Labostriagee on felony probation on certain terms and conditions, including that she serve 60 days on home detention.
On October 24, 2016, Labostriagee filed her appeal in this matter and the court granted her request for a certificate of probable cause.
DISCUSSION
In People v. Fenton (1993) 20 Cal.App.4th 965 (Fenton), the court found that a defendant who took a controlled substance into a jail did not violate section 4573 because he had a physician's prescription for the drug. (Id. at pp. 966, 971.)
Labostriagee cites Fenton to contend she did not violate section 4573 because she had a "prescription" that allowed her to possess the marijuana found in her possession. Respondent contends this issue is not cognizable on appeal because it challenges the validity of Labostriagee's plea. Labostriagee cites People v. Soriano (1992) 4 Cal.App.4th 781 (Soriano) and People v. Watson (2004) 125 Cal.App.4th 700 (Watson) to contend that since it was not legally possible for her to violate section 4753, the court acted in excess of its jurisdiction when it accepted her "legally impossible admission" to that offense. Thus, according to Labostriagee, since she is raising jurisdictional grounds to the validity of her plea, this issue is cognizable on appeal with a certificate of probable cause. We agree with respondent.
In Labostriagee's reply brief, she cites to People v. Watson (2004) 125 Cal.App.4th 62.
Section 4573, subdivision (a), in pertinent part, provides:
"[A]ny person, who knowingly brings or sends into, ... any ... place where prisoners or inmates are located under custody of any sheriff, ... or within the grounds belonging to the institution, any controlled substance, the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code, any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or
consuming a controlled substance, is guilty of a felony punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years. (Italics added.)
Marijuana is a controlled substance. (Health & Saf. Code, § 11054, subd. (d)(13).) When Labostriagee committed her offense, Health and Safety Code section 11357, subdivision (b) prohibited the possession of marijuana. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) Prop. 47, § 12, approved Nov. 12, 2014, eff. Nov. 5, 2014.) Health and Safety Code section 11362.5, subdivision (d) then provided that Health and Safety Code section 11357 did not apply to a "patient ... who possesse[d] ... marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician." (Health & Saf. Code, § 11362.5, subd. (d).) Thus, Health and Safety Code section 11362.5, subdivision (d) provided a defense to a charge of possession of marijuana because it rendered the possession noncriminal for a "qualified patient or primary caregiver" who obtained and used marijuana for medical purposes upon the recommendation of a physician. (People v. Mower (2002) 28 Cal.4th 457, 471-472.)
Section 1237.5 authorizes an appeal from a judgment of conviction upon a plea of guilty or nolo contendere when the defendant has received a certificate of probable cause from the court indicating "reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings." (§ 1237.5, subds. (a), (b).) The California Rules of Court additionally authorize an appeal from a plea based judgment of conviction on grounds occurring after entry of the plea which do not challenge the validity of the plea or which involve a section 1538.5 ruling. (Cal. Rules of Court, rule 8.304(b).) Otherwise, it is well settled that all errors arising prior to entry of a guilty plea are waived. (People v. Lilienthal (1978) 22 Cal.3d 891, 897; People v. Egbert (1997) 59 Cal.App.4th 503, 509.)
Waiver occurs as an inherent part of the plea process. "By pleading guilty, a defendant admits the sufficiency of the evidence establishing the crime, and is therefore not entitled to a review on the merits." (People v. Meyer (1986) 183 Cal.App.3d 1150, 1157.) Matters concerning the defendant's guilt or innocence are not among the issues cognizable on appeal from a guilty plea conviction. (People v. Hoffard (1995) 10 Cal.4th 1170, 1178; People v. Voit (2011) 200 Cal.App.4th 1353, 1364.) As contemplated by section 1237.5, reasonable constitutional and jurisdictional grounds for an appeal following a guilty plea are generally limited to questions which go to the power of the state to prosecute the defendant despite his guilt. (People v. Halstead (1985) 175 Cal.App.3d 772, 778.) "In other words, in the language of the statute, defendant can only raise 'grounds going to the legality of the proceedings.' (§ 1237.5[, subd. (a)].)" (People v. Turner (1985) 171 Cal.App.3d 116, 126.)
Moreover, " '[a] guilty plea is more than an admission of guilt; it is also a waiver of affirmative defenses.' " (People v. McNabb (1991) 228 Cal.App.3d 462, 471; People v. Marlin (2004) 124 Cal.App.4th 559, 567.) Thus, even though she obtained a certificate of probable cause, by pleading no contest to violating section 4573, Labostriagee forfeited her defense that was premised on her alleged lawful possession of marijuana.
In Soriano, the defendant was charged with and pleaded no contest to forging an instrument—a death certificate—in violation of section 115 and was placed on probation. On appeal, the People contended that section 1237.5 prohibited the defendant from appealing his conviction because he failed to show jurisdictional grounds going to the legality of his entry of plea. The Soriano court disagreed finding that the defendant pled to a legal impossibility because, "as a matter of law, the writing he was charged with and admitted forging, a death certificate, is not an instrument within the meaning of section 115." (Soriano, supra, 4 Cal.App.4th at p. 784.)
In Watson, the defendant pled no contest to battery by a prisoner in violation of section 4501.5, which made it a felony for a person "confined in a state prison" who "commits a battery upon the person of any individual who is not himself a person confined therein ...." (Watson, supra, 125 Cal.App.4th at p. 703.) On appeal, the defendant contended he could not, as a matter of law, have violated section 4501.5 because he committed the battery after being transferred from state prison to Atascadero State Hospital and, thus, he was not "confined in a state prison" within the meaning of that section when he committed the battery. (Watson, at pp. 703-704.) The Watson court agreed. (Id. at pp. 706-707.) In doing so, it found that because the defendant obtained a certificate of probable cause and alleged a "legal impossibility," his claim was cognizable on appeal. (Id. at p. 705.)
Watson was granted review on January 18, 2005, S131052, by the Supreme Court. In People v. Watson (2007) 42 Cal.4th 822, which superseded the Court of Appeal's decision, the Supreme Court reversed the appellate court's finding that a prisoner transferred to Atascadero State Hospital was not "confined in a state prison." Because review was sought only on this issue, the court did not consider whether the defendant's claim was cognizable after a no contest plea, but it stated that it was questionable whether it was. (Id. at pp. 825-826.) It also noted that the proper procedure to have preserved this issue on appeal "would have been for [the] defendant to enter a ' "slow plea," ' submitting the issue of his guilt of the charged offense on the basis of the preliminary hearing transcript or other documentation, and then to appeal from the trial court's judgment of guilt." (Id. at p. 825, fn. 3.)
Neither Soriano or Watson assist Labostriagee because, in each case, the defendant pled to a "legal impossibility," a situation not present here. Instead, Labostriagee's contention, that she could not be prosecuted for possession of marijuana because she possessed a "prescription" for the drug, was a defense to the charged violation of section 4573 (People v. Mower, supra, 28 Cal.4th at p. 471), which she forfeited on appeal through her no contest plea. Since Labostriagee's contention is not cognizable, we will dismiss her appeal. (Cf. People v. Panizzon (1996) 13 Cal.4th 68, 89.)
DISPOSITION
The appeal is dismissed.