Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR532917
McGuiness, P.J.
Appellant Richard Joseph Miranda agreed to a plea bargain in which he admitted that a prior conviction counted as a “strike” under California’s Three Strikes Law. On appeal, he asks this court to direct the trial court to dismiss the strike, arguing that the record of conviction in the prior case does not establish that the conviction qualifies as a strike. We affirm the judgment.
Miranda also filed a petition for a writ of habeas corpus asserting, among other things, that he received ineffective assistance of counsel in connection with his plea. As explained below, we have severed the writ petition from this appeal and issued an order to show cause returnable to the trial court in the habeas proceeding.
Factual and Procedural Background
Miranda fled from law enforcement in a stolen vehicle for over 40 minutes through two counties, at times reaching speeds in excess of 100 miles per hour. The police eventually managed to disable the vehicle Miranda was driving by deploying a spike strip that punctured the car’s front tire.
Because Miranda’s conviction resulted from a plea, the facts concerning the commitment offense are derived from the probation report.
The Sonoma County District Attorney charged Miranda in a four-count information with evading a pursuing police car with wanton disregard for safety (Veh. Code, § 2800.2, subd. (a); count 1), vehicle theft (Veh. Code, § 10851, subd. (a); count 2), receiving a stolen vehicle (Pen. Code, § 496d, subd. (a); count 3), and driving with a suspended or revoked license, a misdemeanor (Veh. Code, § 14601.1, subd. (a); count 4). It was further alleged that Miranda had suffered one prior strike under California’s Three Strikes Law (Pen. Code, § 1170.12) in that he had been convicted in 2004 of vehicular manslaughter (Pen. Code, § 192, subd. (c)(1)), a crime the information described as a “serious or violent felony.”
During a pre-trial hearing on September 12, 2008, Miranda’s trial counsel informed the court that her client was not in a position to accept a plea offer that had been extended by the prosecutor. Among other things, the offer required Miranda to admit the prior strike. Miranda’s trial counsel pointed out that the case involved an “unusual strike prior conviction of the vehicular manslaughter where [Miranda] you may recall was in the back seat when this manslaughter occurred.” Counsel explained that the prosecutor was unwilling to dismiss the strike.
On September 17, 2008, pursuant to a plea agreement, Miranda pleaded guilty to the charge of evading a pursuing police car and admitted the prior strike allegation. In exchange for the plea, the prosecutor agreed to dismiss the remaining charges. The prosecutor also agreed that the court could place a “mid-term top” on the sentence for the charge of evading a pursuing police car. Thus, because the mid-term sentence for a violation of Vehicle Code section 2800.2 is two years (see Pen. Code, § 18), Miranda faced a maximum prison term of four years in view of the fact he had admitted a prior strike that had the effect of doubling his sentence. (Pen. Code, § 1170.12, subd. (c)(1).)
On November 20, 2008, Miranda filed a motion pursuant to Penal Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 requesting that the court exercise its discretion to dismiss the prior strike conviction in the interest of justice. On December 11, 2008, he filed a separate motion seeking to set aside his admission and to dismiss the strike allegation on the ground that his prior vehicular manslaughter conviction did not qualify as a “serious” or “violent” felony. Specifically, his trial counsel contended that the “record of conviction” in the prior case did not establish that the manslaughter involved personal infliction of great bodily injury on a non-accomplice, as required to qualify the offense as a “serious felony.” (See Pen. Code, §§ 1192.7, subd. (c)(8), 1192.8, subd. (a).) The prosecutor opposed the motion and submitted exhibits from the prior record of conviction in the manslaughter case.
The court heard and denied Miranda’s motion to dismiss the prior strike on January 27, 2009. On February 25, 2009, the court denied Miranda’s Romero motion to dismiss the prior strike. The court sentenced Miranda to the mid-term of two years for evading a pursuing police car and doubled that term based on the prior strike, for a total sentence of four years.
Miranda filed a timely notice of appeal in which he recited, “This appeal is based on the validity of the prior strike conviction.” He did not seek a certificate of probable cause. On April 15, 2009, Miranda, through his appointed counsel on appeal, filed an amended notice of appeal that included a request for a certificate of probable cause on the issue of whether the prior conviction qualified as a strike. The trial court granted the request for a certificate of probable cause.
Discussion
On appeal, Miranda contends the prosecution failed to prove that his vehicular manslaughter conviction was a “serious felony” and therefore qualified as a strike. He requests that we reverse the judgment and direct the trial court to dismiss the strike. The People contend the appeal should be dismissed, arguing Miranda’s admission that he suffered a prior strike waives any right to question the sufficiency of the evidence supporting the strike. As explained below, we agree with the People that Miranda’s claim is not cognizable on appeal, even with a certificate of probable cause.
A. Background
The circumstances of the incident that resulted in Miranda’s 2004 vehicular manslaughter conviction are described in the probation report, which purports to be based upon a report filed by the California Highway Patrol. As reflected in the probation report, on March 29, 2003, Miranda was a backseat passenger in a car driven by Dawn Rosser. Miranda’s brother, Jeffrey, was a passenger in the right front seat of the vehicle. Miranda became upset with Rosser after she missed a freeway exit and informed the two brothers she was going to return home. Miranda became more upset, reached forward, and grabbed the steering wheel, jerking it hard to the right and out of Rosser’s hands. The vehicle traveled out of control, left the roadway, and ultimately crashed into a tree. Jeffrey was declared dead at the scene.
The Sonoma County District Attorney filed an information charging Miranda with vehicular manslaughter. (Pen. Code, § 192, subd. (c)(1).) In the information, it was alleged that Miranda violated Penal Code section 192, subdivision (c)(1), “in that he did unlawfully, and without malice, kill JEFFREY RICHARD MIRANDA, a human being, while driving a vehicle in the commission of an unlawful act, not amounting to a felony, and with gross negligence; and while driving a vehicle in the commission of a lawful act which might have produced death, in an unlawful manner, and with gross negligence.” Miranda agreed to a plea bargain in which he pleaded no contest to the vehicular manslaughter charge in exchange for a promise that he would be granted probation and would receive no more than a nine-month jail sentence.
In this case, on September 17, 2008, Miranda admitted that his vehicular manslaughter conviction constituted a prior strike conviction pursuant to Penal Code section 1170.12. Less than three months later, he filed a motion challenging the validity of his prior strike conviction. He did not seek to withdraw his plea but instead asked the court to dismiss the prior strike. In effect, therefore, he sought to improve the bargain to which he had agreed.
Although the motion was entitled, “Request to Dismiss Prior Strike Allegation, ” in the body of the motion Miranda requested that the court “strike the admission” of the prior strike. The language asking the court to strike the admission did not transform the motion into one seeking to withdraw the plea. Nowhere in the motion did Miranda suggest that his admission of the strike resulted from a mistaken belief, ignorance, or any other factor that may have affected his judgment and thus justified withdrawing his admission. Instead, much like Miranda’s Romero motion asked the court to honor the plea but dismiss the strike in the interests of justice, the motion to dismiss the strike plainly sought to retain the benefits of the plea agreement while dismissing the strike for insufficient evidence. His own appellate counsel effectively admitted as much by characterizing the motion as follows in the opening brief on appeal: “The object of defense counsel’s motion was dismissal of the ‘strike’ on the grounds that the ‘record of conviction was insufficient to satisfy the ‘serious felony’ definition.”
In his motion papers, Miranda argued that his vehicular manslaughter conviction did not qualify as a strike unless the record of conviction showed that he personally inflicted great bodily injury. In opposing the motion, the prosecutor submitted three documents to establish the validity of the prior conviction: the information, the written plea waiver form, and the minute order of the hearing at which Miranda pleaded no contest to the vehicular manslaughter charge. The prosecutor did not oppose the motion as procedurally improper or challenge Miranda’s right to dismiss the strike after admitting it pursuant to a plea. Rather, the prosecutor addressed the motion on the merits and claimed that the record of conviction in the prior case established that Miranda had personally inflicted great bodily injury. The trial court agreed with the prosecutor and denied Miranda’s motion to dismiss the strike, reasoning that the record of conviction showed that Miranda was driving and that he caused a death, thereby establishing that he personally inflicted great bodily injury.
B. Miranda’s Attack on the Sufficiency of the Evidence Supporting the Strike Allegation Is Not Cognizable on Appeal.
Following a plea of guilty or no contest, the issues that a defendant may raise on appeal are limited to (1) the denial of a motion to suppress evidence, and (2) grounds that arose after entry of the plea that do not affect its validity, unless the defendant secures a certificate of probable cause signed by the trial court. (See Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304(b); People v. Kaanehe (1977) 19 Cal.3d 1, 7-8.) Even when a defendant obtains a certificate of probable cause, he is limited to raising so-called “certificate” issues, which concern “reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.” (Pen. Code, § 1237.5, subd. (a); see People v. Mendez (1999) 19 Cal.4th 1084, 1088; People v. DeVaughn (1977) 18 Cal.3d 889, 895-896.)
A plea of guilty “admits all matters essential to the conviction.” (People v. DeVaughn, supra, 18 Cal.3d at p. 895.) “ ‘Admissions of enhancements are subject to the same principles as guilty pleas. [Citation.] A guilty plea admits every element of the offense charged and is a conclusive admission of guilt. [Citations.] It waives any right to raise questions about the evidence, including its sufficiency. [Citation.]’ ” (People v. Fulton (2009) 179 Cal.App.4th 1230, 1237, italics added.)
Here, Miranda’s admission of the strike precludes any attack on the sufficiency of the evidence to support that enhancement. People v. Pinon (1979) 96 Cal.App.3d 904, is directly on point. There, the defendant had pleaded guilty to possession of a firearm by a convicted felon. (Id. at p. 907.) On appeal, he contended “that the plea was invalid because the record does not reflect a factual basis for the plea and that his prior conviction was a misdemeanor, not a felony.” (Ibid.) The court in Pinon recognized the claim went “to the question of guilt or innocence” and that the issue had “been ‘removed from consideration’ by the guilty plea. [Citation.]” (Id. at p. 910.) The appellate court reasoned the issues “sought to be raised do not attack the proceedings resulting in the plea. Rather, defendant’s contention that the prior conviction was a misdemeanor rather than a felony, and the related contention that counsel was incompetent, go solely and directly to the question whether he was in fact guilty of the charged offense. However, his plea of guilty ‘operated to remove such issues from consideration as a plea of guilty admits all matters essential to the conviction.’ [Citations.] Consequently, these issues are simply not cognizable on the present appeal, whether or not defendant obtained a certificate of probable cause.” (Ibid.)
People v. Lobaugh (1987) 188 Cal.App.3d 780 is likewise instructive. In that case, the defendant pleaded guilty to robbery and admitted a firearm use enhancement, a prior serious felony conviction, and a prior prison term allegation. (Id. at p. 783.) On appeal, the defendant sought to challenge the sufficiency of the evidence to support the firearm use enhancement. (Id. at p. 785.) Although the defendant had failed to secure a certificate of probable cause, the appellate court concluded the issue would not have been cognizable on appeal even if the trial court had granted a certificate of probable cause, reasoning that “any error relating to the sufficiency of the evidence does not go to the legality of the proceeding, was waived by his guilty plea and may not be raised on appeal.” (Ibid.)
Miranda admitted that he had suffered a prior strike as a result of being convicted of vehicular manslaughter. As a result of his admission, he waived any claim that the evidence was insufficient to support treating his prior conviction as a strike. As our Supreme Court stated in In re Troy Z. (1992) 3 Cal.4th 1170, 1181, “ ‘ “a defendant ‘cannot admit the sufficiency of the evidence by pleading guilty... and then question the evidence by an appeal....’ ” ’ [Citations.]”
Furthermore, it is immaterial that Miranda obtained a certificate of probable cause. “The issuance of a certificate of probable cause... does not operate to expand the grounds upon which an appeal may be taken as that section relates only to the ‘procedure in perfecting an appeal from a judgment based on a plea of guilty.’ [Citations.]” (People v. DeVaughn, supra, 18 Cal.3d at p. 896.) By entering his guilty plea and admitting the prior strike, Miranda removed the matter from appellate consideration.
A defendant may not agree to a plea bargain and then attempt to improve the agreement on appeal by seeking to dismiss charges or enhancements he claims are not supported by substantial evidence. (See People v. Vera, supra, 122 Cal.App.4th at p. 983.) Here, in exchange for the generous benefits of dismissed counts and a “mid-term top, ” Miranda admitted all matters essential to the conviction on the charge of evading a pursuing police officer as well as the prior strike allegation. He may not improve the deal on appeal by striking an enhancement that he admitted and that was an integral part of the offer made by the prosecutor.
C. Miranda Offers No Valid Basis for Granting Relief in the Direct Appeal.
In his opening brief on appeal, Miranda offers two reasons why his attack on the sufficiency of the evidence supporting the strike allegation is cognizable on appeal. As we explain, Miranda’s contentions lack merit.
First, Miranda claims that both the court and the prosecutor fully addressed his post-plea motion to dismiss the strike allegation on the merits. Thus, he contends the issue is properly before this court because it was fully litigated below. The only case Miranda cites to support his argument is People v. Rodriguez (1998) 17 Cal.4th 253 (Rodriguez), which is inapposite. In Rodriguez, the Attorney General contended that a defendant had failed to challenge the sufficiency of the evidence to support a strike allegation in the trial court, thereby waiving his right to raise the issue on appeal. (Id. at p. 262.) The Supreme Court disagreed, concluding that a defendant may challenge the sufficiency of the evidence on appeal by filing a timely notice of appeal. (Ibid.) Significantly, the strike enhancement in Rodriguez was not based upon a plea but was instead based upon a finding of the trial court sitting as a trier of fact. (Id. at pp. 256, 261.) Here, unlike in Rodriguez, Miranda’s strike enhancement was based upon his plea in which he admitted the truth of the allegation. As discussed above, a guilty plea or admission of an enhancement waives the right to question the sufficiency of the evidence supporting the charge. (See People v. Fulton, supra, 179 Cal.App.4th at p. 1237.) Rodriguez does not state otherwise.
Second, in an “abundance of caution, ” Miranda claims that any failure to preserve the sufficiency of the evidence issue for appeal constituted ineffective assistance of counsel. Miranda claims: “The object of defense counsel’s motion was dismissal of the ‘strike’ on the grounds that the ‘record of conviction’ was insufficient to satisfy the ‘serious felony’ definition. Any perceived failure to marshall all the meritorious arguments in favor of that motion would necessarily represent ineffective assistance.”
Miranda has failed to establish that he received ineffective assistance of counsel, which has two necessary components: (1) the defendant must show counsel’s performance was deficient; and (2) the defendant must show the deficient performance prejudiced the defense. (See Strickland v. Washington (1984) 466 U.S. 668, 687.) Because a guilty plea or admission of an enhancement necessarily waives any challenge to the sufficiency of the evidence, there simply was no way for Miranda’s trial counsel to preserve the sufficiency issue for appeal following the plea. As a result, Miranda cannot demonstrate any prejudice he suffered as a result of his trial counsel’s failure to “marshall all the meritorious arguments” in favor of his motion to dismiss the strike for lack of evidentiary support. The relief he sought by way of the motion to dismiss the strike was unavailable to him, regardless of the competence of his trial counsel.
Miranda also made a separate Romero motion asking the court to exercise its discretion to dismiss the prior strike conviction in the interest of justice. When, as here, a plea bargain does not specify a particular sentence and the agreement is silent concerning the defendant’s right to file a Romero motion, a trial court has discretion to dismiss a strike in the interests of justice, notwithstanding the defendant’s admission of the strike allegation. (People v. Smith (1997) 59 Cal.App.4th 46, 51-52.) Thus, in this case, Miranda was entitled to request that the court dismiss the strike in the interests of justice under Romero. On appeal, Miranda does not challenge the trial court’s denial of his Romero motion, which would require him to establish that the court abused its discretion in denying his motion. (See People v. Uecker (2009) 172 Cal.App.4th 583, 599.)
In his reply brief, Miranda changes course and claims he is not seeking to dismiss the strike but instead is seeking to withdraw his plea. Apparently recognizing that he is not entitled to improve the deal on appeal, he states: “Lest there be any confusion on this score, Miranda recognizes that his challenge to the ‘strike’ admission does implicate the validity of his plea bargain.... He acknowledges that, if he prevails on his claim, the deal will be off-i.e., the entire plea bargain, not just the ‘strike, ’ will be set aside.” In effect, he now seeks to treat his motion to dismiss the strike as the functional equivalent of a motion to withdraw his plea.
Further, Miranda’s reply brief contains new and additional arguments in support of his claim that he has presented cognizable issues on appeal. As part of his effort to recharacterize his motion to dismiss the strike as a motion to withdraw his plea, he asserts that the denial of a motion to withdraw a plea is reviewable with a certificate of probable cause. He also contends that a certificate of probable cause authorizes appellate review of the factual basis for a charge admitted as part of a plea bargain. In addition, he claims the People are estopped from raising a procedural objection to his challenge to the validity of the strike because the prosecutor made no such objection in the trial court. Finally, he claims that he received ineffective assistance of counsel in connection with his plea because his trial counsel was ineffective in recommending that he admit a strike allegation for a prior conviction that does not qualify as a strike.
We generally disregard arguments raised for the first time in a reply brief absent a showing as to why they could not have been made earlier. (People v. Newton (2007) 155 Cal.App.4th 1000, 1005; People v. Jackson (1981) 121 Cal.App.3d 862, 873.) We would therefore be justified in treating as waived the arguments Miranda advanced for the first time in his reply brief. To avoid any suggestion that Miranda received ineffective assistance of appellate counsel, we shall briefly address his belatedly presented arguments supporting the cognizability of his claims on appeal.
Miranda’s attempt to recharacterize his motion to dismiss the strike as a motion to withdraw his plea is unavailing. Throughout the proceedings in the trial court and in his opening brief on appeal, Miranda sought to dismiss the strike conviction while maintaining the benefits of his plea agreement. He never suggested that dismissing the strike conviction was tantamount to withdrawing his plea. He cannot now recast his motion as something entirely different in order to generate a cognizable claim for appeal.
As Miranda indicates, a defendant who pleads guilty pursuant to a plea bargain may challenge the factual basis for a plea on appeal if he secures a certificate of probable cause. (See People v. Willard (2007) 154 Cal.App.4th 1329, 1333-1334; see also People v. Hoffard (1995) 10 Cal.4th 1170, 1174.) However, a claim that there is not an adequate factual basis for a plea is not the equivalent of a challenge to the sufficiency of the evidence supporting a charge. The factual basis requirement may be satisfied “by having the defendant describe the conduct or answer questions, by detailing a factual basis, or by having defense counsel stipulate to a particular document such as the transcript of a preliminary hearing as providing a factual basis for a plea. [Citation.] The trial court need not obtain an element-by-element factual basis but need only obtain a prima facie factual basis for the plea. [Citation.]” (People v. Marlin (2004) 124 Cal.App.4th 559, 571-572; see also People v. Holmes (2004) 32 Cal.4th 432, 435-436.) Further, a “trial court’s finding that there is a factual basis for the plea is reviewed for an abuse of discretion. [Citation.]” (People v. Willard, supra, at p. 1333.) “If there is error, it will be deemed harmless if the record supports a finding of a factual basis for the conditional plea. [Citation.]” (Ibid.)
Here, Miranda did not pursue a “factual basis” challenge to his plea but instead contended there was insufficient admissible evidence to support his plea. While he may be entitled to challenge the factual basis for his plea-a narrow inquiry that is reviewed for abuse of discretion-he may not attack the sufficiency of the evidence to support a charge that he has admitted pursuant to plea agreement. (People v. Fulton, supra, 179 Cal.App.4th at p. 1237.) Further, even if Miranda had properly raised a challenge to the factual basis for his plea, any error would be harmless because the record supports a finding of a factual basis for the strike admission. The probation report in this case describes the circumstances of Miranda’s vehicular manslaughter conviction. The report explains that Miranda’s brother was killed when Miranda took control of the steering wheel from the back seat of the vehicle, causing it to go out of control and crash. This description is sufficient to establish a prima facie case that Miranda suffered a prior strike in that he personally inflicted great bodily injury on a non-accomplice. (Pen. Code, § 1192.7, subd. (c)(8); People v. Holmes, supra, 32 Cal.4th at p. 441, fn. 8 [probation report may supply factual basis].)
Insofar as Miranda claims the People are estopped from raising a procedural objection to his challenge to the validity of the strike, we are unpersuaded. It is true, as Miranda claims, that the prosecutor chose to address the motion to dismiss the strike on the merits instead of claiming the motion was procedurally improper. However, it is not true that the People have consequently forfeited the right on appeal to assert the legal principle that precludes a defendant who pleads guilty from thereafter challenging the sufficiency of the evidence. (People v. Fulton, supra, 179 Cal.App.4th at p. 1237.) The issue is a purely legal one and is not subject to forfeiture. (See People v. Percelle (2005) 126 Cal.App.4th 164, 179.)
Finally, with regard to Miranda’s contention that he received ineffective assistance of counsel in connection with his plea, the issue was not properly raised in his opening brief, despite his claim otherwise. As noted above, Miranda raised a very limited ineffective assistance claim in his opening brief, focusing on whether his trial counsel adequately preserved for appeal the issue of whether the evidence was sufficient to support his strike conviction. He did not argue he received ineffective assistance of counsel in connection with his plea or even articulate the legal standards that would govern such an inquiry. Consequently, Miranda forfeited the issue in his direct appeal. (See People v. Newton, supra, 155 Cal.App.4th at p. 1005; People v. Jackson, supra, 121 Cal.App.3d at p. 873.) Nevertheless, as explained below, we have issued an order to show cause returnable to the superior court on this issue in the habeas proceeding initiated by Miranda.
D. Miranda’s Habeas Corpus Petition Presents a Prima Facie Case for Relief.
While his appeal was pending, Miranda filed a petition for a writ of habeas corpus that raises many of the same issues as his appeal and includes a claim that his admission of the strike was the product of ineffective assistance of trial counsel. We consolidated the writ petition with the pending appeal and requested that the People file an opposition to the petition.
Miranda’s claim is that his trial counsel mistakenly failed to realize that he had a viable defense to the strike allegation. He asserts that he would never had admitted the strike allegation if he had been informed there were legal grounds to challenge the use of his prior vehicular manslaughter conviction as a strike. Because we agree that Miranda has established a prima facie case of ineffective assistance of counsel in connection with his plea, by separate order in case No. A128246 we shall sever the writ petition from this appeal and issue an order to show cause returnable to the trial court.
Disposition
The judgment is affirmed.
We concur: Siggins, J.Jenkins, J.