Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC935177
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
After entering into a negotiated plea agreement, defendant Edgar Martinez pleaded no contest to three felony counts of lewd or lascivious act on a child under the age of 14 (Pen. Code, § 288, subd. (a)), one felony count of forcible lewd and lascivious act on a child under the age of 14 (§ 288, subd. (b)(1)), and one misdemeanor count of indecent exposure (§ 314.1). Defendant also admitted the truth of allegation, as to each felony count, that he had substantial sexual conduct within the meaning of section 1203.066, subdivision (a)(8) with the victim, K., who was under the age of 14. The trial court imposed the agreed-upon maximum sentence of six years.
All statutory references hereafter are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that he should have been allowed to plead no contest to the allegations that he had substantial sexual conduct within the meaning of section 1203.066, subdivision (a)(8) with the victim, K., who was under the age of 14. Defendant also contends that he may raise the issue on appeal without obtaining a certificate of probable cause under section 1237.5. For the reasons stated below, we determine that a certificate of probable cause was required and therefore we will dismiss the appeal.
II. FACTUAL BACKGROUND
Our summary of the facts is drawn from the reporter’s transcript of the preliminary examination held on October 28, 2009.
At the time of the preliminary examination, K. was 11 years old. Defendant was the husband of a friend of K.’s mother. Starting in third grade, K. went to defendant’s home three or four time a week. Sometimes K. would just visit and at other times defendant’s wife would babysit her. Defendant was usually present when K. was in his home.
One day before Halloween, when K. was in the third grade, she visited defendant’s house before going to church. As she was napping, defendant entered the bedroom and touched her under her clothing where she goes “pee-pee.” Defendant also touched her private place over her clothing about three times per week.
On approximately ten occasions, defendant took his penis out and showed it to K. He would then grab K.’s hand and pull it closer to his penis. After a quick touch, K. would take her hand away.
When K. was in the fifth grade, an incident occurred when she was playing Dungeons & Dragons. While the other players were hiding, defendant grabbed K. from behind and rubbed her bottom with his penis.
Shortly before Christmas in 2008, K. attended a surprise birthday party for her mother at defendant’s house. During the party, K. took a nap in the bedroom and woke up to find defendant in the room. He was touching her private place over her clothing. K.’s mother and defendant’s wife came into the bedroom and surprised defendant and K. The next day, K. talked to a police officer and told him about defendant touching her.
III. PROCEDURAL BACKGROUND
On February 23, 2009, a felony complaint was filed that charged defendant with three counts of lewd or lascivious act on a child under the age of 14 (§ 288, subd. (a); counts 1-3) and one misdemeanor count of indecent exposure (§ 314.1; count 4). At the conclusion of the October 28, 2009, preliminary examination defendant was held to answer on all charges.
The information filed on November 5, 2009, charged defendant with three counts of lewd or lascivious act on a child under the age of 14 (§ 288, subd. (a); counts 1-3), one count of forcible lewd and lascivious act on a child under the age of 14 (§ 288, subd. (b)(1); count 4), and one misdemeanor count of indecent exposure (§ 314.1; count 5). As to counts 1 through 4, the information also alleged that “during the commission of the above offense, the [defendant] had substantial sexual conduct with [K.], and the victim was under the age of fourteen years, within the meaning of [section] 1203.066(a)(8).”
Section 1203.066, subdivision (a)(8) provides, “Notwithstanding Section 1203 or any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provisions of this section be stricken pursuant to Section 1385 for, any of the following persons: [¶]... [¶] A person who, in violating Section 288 or 288.5, has substantial sexual conduct with a victim who is under 14 years of age.”
Defendant entered into a negotiated plea agreement during trial court proceedings held on April 7, 2010. The parties agreed that the maximum sentence that the trial court could impose under the plea agreement was six years, but disagreed as to whether the court had the discretion to impose a lesser sentence. Defendant then pleaded no contest to all charges in the information and admitted the truth of the allegations that, as to counts 1 through 4, he had substantial sexual conduct within the meaning of section 1203.066, subdivision (a)(8) with the victim, K., who was under the age of 14.
Although defense counsel had initially advised the trial court that defendant wanted to plead no contest to the special allegations, defendant admitted the truth of each allegation that he had substantial sexual conduct within the meaning of section 1203.066, subdivision (a)(8) with the victim, K., who was under the age of 14, as indicated in the following colloquy:
“THE COURT: All right. In Count 1, with respect to the allegation that during the commission of this offense you had substantial sexual conduct with victim [K.], who was under the age of 14, within the meaning of [section] 1203.066(a)(8), do you admit that allegation to be true:
“(Whereupon, there was a discussion between the attorney and her client off the record.)
“THE COURT: Do you want to show him the allegation so we can
“[DEFENSE COUNSEL]: I did. It’s right there.
“THE COURT: All right. And so, madam Interpreter, if you could read the allegation that I just read to [defendant] in Spanish.
“THE INTERPRETER: Yes.
“THE COURT: Thank you.
“[DEFENSE COUNSEL]: I think the issue, Your Honor, is he wants to plead no contest.
“THE COURT: He did plead no contest.
“[DEFENSE COUNSEL]: Right. That’s what he wants to do with the allegation.
“(Whereupon, there was a discussion between the attorney and her client off the record.)
“THE DEFENDANT: Okay.
“THE COURT: All right. There’s been another discussion. [Defendant], to insure that you understand the legal significance of an admission of this allegation is not additional prison time because the condition of your plea is six years top, but the admission of this allegation has the legal consequence of making you ineligible for probation. Do you understand this?
“THE DEFENDANT: Yes.
“THE COURT: All right. So I’m going to ask that question again so we have a clear record. In connection with Count 1 and with respect to the allegation in Count 1, that during the commission of this offense you had substantial sexual conduct with [K.], who was under the age of 14 years, within the meaning of [section] 1203.066(a)(8), do you admit that allegation to be true?
“THE DEFENDANT: Yes.
“[DEFENSE COUNSEL]: He admits that, Your Honor, within the purview of his no contest plea to Count 1. So he wants the fact that he pled no contest to be what -- is what is -- he’s trying to wrap his mind around, but he will admit the allegation to the Court if that makes sense then.
“THE COURT: Okay. Do you admit that allegation to be true?
“[DEFENSE COUNSEL]: Do you admit that allegation that the Court asked you? Do you admit that allegation to be true that the Court just asked? Do you admit that allegation?
“THE COURT: Do you admit the allegation? [¶]... [¶]
“THE DEFENDANT: Yes.”
Thereafter, defendant admitted the truth of the special allegations as to counts 2 through 4, without any further discussion with defense counsel or the trial court or any indication of a desire to plead no contest to the allegations. The record further reflects that after the hearing held on April 7, 2010, where defendant entered his negotiated plea, defendant did not make a motion to withdraw his plea or otherwise seek to change his plea, including his admission of the truth of the special allegations that, as to counts 1 through 4, he had substantial sexual conduct within the meaning of section 1203.066, subdivision (a)(8) with the victim, K., who was under the age of 14.
At the sentencing hearing held on June 11, 2010, the trial court stated that the factors in aggravation and mitigation were balanced and imposed the middle term of six years on count 1 and concurrent sentences of six years each on counts 2 through 4. The court also noted that defendant was statutorily ineligible for probation under section 1203.066, subdivision (a)(8), denied probation, and imposed various fines and fees.
Defendant filed a timely notice of appeal on July 1, 2010, that states that the appeal is based upon the sentence or other matters that do not affect the validity of the plea. The record reflects that defendant did not request a certificate of probable cause pursuant to section 1237.5.
Section 1237.5 provides, “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, 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.”
IV. DISCUSSION
On appeal, defendant argues that he should have been allowed to respond “no contest” to the special allegations that, as to counts 1 through 4, he had substantial sexual conduct within the meaning of section 1203.066, subdivision (a)(8) with the victim, K., who was under the age of 14. According to defendant, “the court allowed [him] to plead no contest to the charged crimes, but forced him to admit as true the probation ineligibility allegations that he had had substantial sexual conduct with the alleged victim. This, [defendant] contends completely undermines the no contest plea, to which neither the Court nor the prosecution objected in this case, and [defendant’s] admissions of the special allegations, should be deemed to be pleas of no-contest to these special allegations.”
Defendant also contends that he may raise this issue on appeal from the judgment of conviction on his no contest plea without having obtained a certificate of probable case pursuant to section 1237.5 because the issue does not affect the validity of the plea and arose after the entry of the plea.
As a threshold matter, we will consider the potentially dispositive issue of whether defendant’s appeal must be dismissed because he did not obtain a certificate of probable cause. Our analysis begins with an overview of section 1237.5 and the circumstances in which a certificate of probable cause is required.
A. Section 1237.5
“Section 1237.5 states broadly that ‘[n]o 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.’ (§ 1237.5, italics added.)” (People v. Johnson (2009) 47 Cal.4th 668, 676 (Johnson); see also Cal. Rules of Court, rule 8.304(c) [implementing § 1237.5].)
“In 1982, the Legislature amended Penal Code section 1016, subdivision (3), to its current version. (Stats. 1982, ch. 390, § 3, p. 1725.) Since then, this subdivision has provided, in part, that the legal effect of a nolo contendere plea to a felony case ‘shall be the same as that of a plea of guilty for all purposes.’ ([§] 1016, subd. (3), italics added.) However, the current version retains the prior prohibition against using the plea as an admission in any civil suit ‘[i]n cases other than those punishable as felonies.’ [Citation.]” (People v. Yartz (2005) 37 Cal.4th 529, 537, fn. 6.)
The purpose of the certificate of probable cause requirement “is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas. [Citations.]” (People v. Panizzon (1996) 13 Cal.4th 68, 75-76.) Thus, section 1237.5 “ ‘merely sets forth a procedure for precluding frivolous appeals by requiring the defendant to set forth grounds for appeal and, if he does so, by requiring the trial court to rule on the issue of probable cause.’ [Citation.]” (Johnson, supra, 47 Cal.4th at p. 676.)
Although the language of section 1237.5 is broad, the California Supreme Court has recognized two exceptions to the requirement of a certificate of probable cause for an appeal arising from a guilty or no contest plea. “First, a defendant may appeal from a ruling involving a search and seizure issue without obtaining a certificate, because an appeal from such a ruling explicitly is authorized by section 1538.5.... [Citations.] Second, a defendant is ‘not required to comply with the provisions of section 1237.5 where... he [or she] is not attempting to challenge the validity of his plea of guilty [or no contest] but is asserting only that errors occurred in the subsequent adversary hearings conducted by the trial court for the purpose of determining the degree of the crime and the penalty to be imposed.’ [Citation.]” (Johnson, supra, 47 Cal.4th at pp. 676-677, fn. omitted.)
The California Supreme Court has further clarified that “[e]ven where a defendant purports to challenge only the sentence imposed, a certificate of probable cause is required if the challenge goes to an aspect of the sentence to which the defendant agreed as an integral part of a plea agreement. [Citation.]” (Johnson, supra, 47 Cal.4th at p. 768.) Additionally, “[a] defendant must obtain a certificate of probable cause in order to appeal from the denial of a motion to withdraw a guilty plea, even though such a motion involves a proceeding that occurs after the guilty plea. [Citation.]” (Id. at p. 679.)
To determine whether section 1237.5 applies to an appeal arising from a guilty or no contest plea, the appellate court “ ‘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. [Citations.]’ ” (People v Buttram (2003) 30 Cal.4th 773, 781-782 (Buttram).)
B. A Certificate of Probable Cause Was Required
While defendant acknowledges that he did not obtain a certificate of probable cause, he argues that a certificate was not required because his appeal falls within the second exception to the section 1237.5 requirement of a certificate of probable cause for an appeal arising from a no contest plea. According to defendant, his appeal does not challenge the validity of the no contest plea, since he merely challenges the form of the plea to the special allegations and the form of the plea was not part of the plea bargain. Additionally, defendant maintains that his admission of the truth of the special allegations occurred after the entry of his no contest plea to the charges. He asks this court to “issue an order deeming the admissions of the truth of the special allegations to be an assertion of nolo contendere.”
The People argue that the appeal should be dismissed because a certificate of probable cause was required. They explain that defendant’s appeal in effect challenges the validity of his plea because he seeks to change the form of his admission of the special allegations. The People assert that this “is exactly the type of frivolous claim that the certificate of probable cause seeks to weed out.” Furthermore, the People point out that defendant failed to provide any authority for the proposition that a defendant may enter a no contest plea to a special allegation.
We determine that under California Supreme Court authority, defendant’s appeal must be dismissed because he failed to obtain a certificate of probable cause under section 1237.5.
It is well established that “[w]hether the appeal seeks a ruling by the appellate court that the guilty plea was invalid, or merely seeks an order for further proceedings aimed at obtaining a ruling by the trial court that the plea was invalid, the primary purpose of section 1237.5 is met by requiring a certificate of probable cause for an appeal whose purpose is, ultimately, to invalidate a plea of guilty or no contest.” (Johnson, supra, 47 Cal.4th at p. 682.) Moreover, where the defendant’s “ ‘challenge attacks an integral part of the plea, it is, in substance, a challenge to the validity of the plea, which requires compliance with... section 1237.5 and rule 31(d) [now rule 8.304(b)].’ [Citations.]” (Buttram, supra, 30 Cal.4th at p. 782.)
Here, defendant in effect seeks a ruling from this court that his admission of the truth of the special allegations--that he had substantial sexual conduct within the meaning of section 1203.066, subdivision (a)(8) with a victim who was under the age of 14--was invalid, since he was forced to admit the truth of the allegations rather than plead no contest. We must therefore determine whether the admission was an integral part of the plea.
Our review of the record shows that defendant’s admission to the truth of the special allegations was made as part of his negotiated plea agreement. The special allegations under section 1203.066, subdivision (a)(8) were expressly stated in the information as to counts 1 through 4. During the trial court proceedings of April 7, 2010, the trial court confirmed that the parties’ plea agreement included a resolution of the entire case as set forth in the information previously filed on November 5, 2009:
“THE COURT: At the instance of the defendant we have had some discussions about resolution of the case. I understand the People’s offer to resolve this case at this point is for [defendant] to plead as charged with a six-year top/bottom; is that correct?
“[THE PROSECUTOR]: Correct, Your Honor.
“THE COURT: All right. And we’ve had some discussions about the defendant’s understanding that the Court may have discretion to sentence for a time less than six years, and the defendant has expressed a willingness to accept a Court offer of six years top; is that correct, [defense counsel]?
“[DEFENSE COUNSEL]: Yes, Your Honor, but we disagree about why we believe the Court has the discretion. [¶]... [¶]
“THE COURT: All right. So I understand that you wish to proceed to change your plea and accept the Court’s six years top offer; is that right, [defendant]?
“THE DEFENDANT: Yes.” (Italics added.)
The record of defendant’s plea agreement therefore shows that he agreed to resolve the entire case as charged, including the special allegations under section 1203.066, subdivision (a)(8). The plea agreement did not include a provision allowing defendant the option of pleading no contest to the special allegations. Consequently, we find that admitting the truth of the special allegations was an integral part of defendant’s plea. “ ‘Since the challenge attacks an integral part of the plea, it is, in substance, a challenge to the validity of the plea, which requires compliance with... section 1237.5....’ ” [Citation.]” (Buttram, supra, 30 Cal.4th at p. 782.)
We also note that defendant claimed in his opening brief that he had been forced to admit the truth of the special allegations, which in his view “completely undermines the no contest plea.” We find this claim to be an implicit acknowledgement that defendant’s appeal challenges the validity of his plea.
Since defendant’s appeal challenges the validity of his plea, he was required to obtain a certificate of probable cause in compliance with section 1237.5. “When a defendant has failed to comply with the requirements of section 1237.5 and rule 31(d) [now rule 8.304(b)], the Court of Appeal ‘generally may not proceed to the merits of the appeal but must order dismissal.... [Citations.]” (People v. Chavez (2003) 30 Cal.4th 643, 651.) Defendant did not obtain a certificate of probable cause and therefore this appeal must be dismissed.
The decision on which defendant relies for a contrary result, Stuart v. Superior Court (1979) 94 Cal.App.3d 182 (Stuart), is inapposite. In Stuart, a condition of the defendant’s plea agreement was that the sentence imposed would be stayed pending appeal. (Id. at p. 184.) The trial court revoked the stay after the defendant was charged with two additional felonies and denied the defendant’s motion to reinstate the stay. (Ibid.) The appellate court determined that the defendant was entitled to the benefit of his bargain and therefore the trial court could not alter the plea agreement, which the parties had not interpreted to grant a conditional stay revocable upon bad conduct. (Id. at p. 186.) Accordingly, the appellate court issued a writ of mandate directing the trial court to set aside its order revoking the stay. (Ibid.) No issue was raised in Stuart as to the requirement of a certificate of probable cause under section 1237.5 and therefore the decision does not support defendant’s contentions.
V. DISPOSITION
The appeal is dismissed.
WE CONCUR: MIHARA, J., duffy, J.