Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SCWLCRC06-69915
SIMONS, J.
Pursuant to a plea bargain, defendant John Henry Trautloff pled guilty to count 2, driving with .08 percent or more, by weight, of alcohol in his blood, with a prior felony manslaughter conviction (Veh. Code, §§ 23152, subd. (b), 23550.5, subd. (a)(3)), and admitted a prior strike allegation. This offense was committed on February 21, 2006. In exchange, count 1, driving under the influence (DUI) of alcohol with a prior felony manslaughter conviction (Pen. Code, §§ 23152, subd. (a), 23550.5, subd. (a)(3)), and three special allegations charged under count 2 were dismissed. Defendant was sentenced to six years in state prison. His sole contention on appeal is that defense counsel rendered ineffective assistance of counsel. The People contend the appeal should be dismissed because it challenges matters admitted by his guilty plea and defendant failed to obtain a certificate of probable cause. We conclude that defendant’s ineffective assistance of counsel claim goes to the issue of his guilt of the offense to which he pled guilty; therefore, his claim would not be cognizable on appeal even if he had obtained a certificate of probable cause. We shall therefore dismiss the appeal.
Background
At the April 6, 2006 preliminary hearing, the prosecutor presented evidence of the February 2006 incident, as well as an abstract of judgment stating that in March 2002 defendant was convicted of DUI vehicular manslaughter pursuant to Penal Code section 192, subdivision (c)(3)) (hereafter section 192(c)(3)). (Italics added.) The magistrate found the evidence sufficient to believe the prior DUI vehicular manslaughter conviction true.
As of March 2002, Penal Code section 192(c)(3) defined vehicular manslaughter as: “Driving a vehicle in violation of Section 23140, 23152, or 23153 of the Vehicle Code and in the commission of an unlawful act, not amounting to a felony, but without gross negligence; or driving a vehicle in violation of Section 23140, 23152, or 23153 of the Vehicle Code and in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence.” (Italics added.) (Stats. 1998, ch. 278, § 1.) Penal Code section 192(c)(3) was amended effective January 1, 2007. (Stats. 2006, ch. 91, § 2.)
The Information
The April 19, 2006 information charged defendant with two counts of DUI with a felony manslaughter prior. Count 1 charged the offense under Vehicle Code sections 23152, subdivision (a) (hereafter section 23152(a)) and 23550.5, subdivision (a)(3) (hereafter 23550.5(a)(3)), and alleged that, in April 2002, defendant was convicted of Penal Code section 192, subdivision (c)(1) (hereafter section 192(c)(1)). (Italics added.) Count 2 charged the offense under Vehicle Code sections 23152, subdivision (b) (hereafter section 23152(b)) and 23550.5(a)(3), and again alleged that in April 2002 defendant was convicted of Penal Code section 192(c)(1). (Italics added.) The information also contained four special allegations: (1) a 60-day enhancement for speeding (Veh. Code, § 23582, subd. (a)); (2) a one-year prior prison term enhancement (Pen. Code, § 667.5, subd. (b)); (3) a prior strike allegation based on a 1987 burglary conviction (Pen. Code, § 667, subds. (b)-(i), 1170.12) and (4) a prior strike allegation based on the 2002 Penal Code section 192(c)(3) conviction. (Italics added.)
In defining vehicular manslaughter, the 2002 version of Penal Code section 192(c)(1) provided, in relevant part: “Except as provided in subdivision (a) of Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.” (Italics added.) (Stats. 1998, ch. 278, § 1.)
Entry of Plea
Through defense counsel, defendant waived a reading of the information at his April 20, 2006 arraignment; and, on April 27, entered pleas of not guilty to both counts and denied all the special allegations. Thereafter, defendant unsuccessfully moved to dismiss the burglary prior strike allegation pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On October 13, 2006, defense counsel stated that after conferring with defendant, defendant would be willing to plead guilty to count 2 and admit the burglary prior strike allegation in exchange for dismissal of the remaining count and special allegations. The court stated that count 2 alleged a violation of Vehicle Code sections 23152(b) and 23550.5(a)(3). Defendant acknowledged that was his understanding of count 2, and acknowledged his understanding of the burglary prior strike allegation. Defendant was advised of the rights he would give up by virtue of his plea, and he acknowledged he had sufficient time to discuss the case and its resolution with counsel. Defense counsel opined that defendant understood his rights, the consequences of their waiver and the elements of the offense, and stipulated that the preliminary hearing transcript supplied a factual basis for defendant’s plea. The court accepted defendant’s plea and granted the prosecution’s motion to dismiss the remaining count and special allegations.
At the December 8, 2006 judgment and sentencing hearing, the court denied defendant’s request to reconsider his Romero motion, and sentenced defendant to the upper three-year term on the Vehicle Code sections 23152(b), and 23550.5(a)(3) offense, doubled under the “three strikes” law. Defendant filed a timely appeal from the “judgment and sentence.” The appellate record does not contain a certificate of probable cause. (Pen. Code, § 1237.5.)
Discussion
Defendant notes that Vehicle Code section 23550.5(a)(3) specifies that its predicate violation must be Penal Code section 192(c)(1), and that Penal Code section 192(c)(3) is the predicate violation for Vehicle Code section 23550.5, subdivision (b). He argues that since the evidence established, and the magistrate found, he previously committed vehicular manslaughter under Penal Code section 192(c)(3), there was no factual basis for his guilty plea to violating Vehicle Code sections 23152(b) and 23550.5(a)(3). Thus, he contends his counsel was ineffective for failing to: (1) argue at the preliminary hearing that Penal Code section 192(c)(3), could not be the predicate for Vehicle Code section 23550.5(a)(3) under counts 1 and 2; (2) move to dismiss the information; (3) withdraw defendant’s plea due to the absence of a factual predicate therefor; and, (4) request a certificate of probable cause. He also asserts that his counsel undermined his Romero motion by erroneously stating that the prior vehicular manslaughter was pursuant to Penal Code section 192(c)(1).
The People contend the appeal is barred and should be dismissed both because it challenges matters admitted by his guilty plea and he failed to obtain a certificate of probable cause. In response, defendant contends his ineffective assistance of counsel claim does not challenge his plea or assert error in the plea proceedings. Instead, he argues, since his conviction on its face lacks the statutorily required predicate, his defense counsel was ineffective in permitting him to plead guilty, waive his constitutional rights, and stipulate to the factual basis of a crime that could not have been committed as a matter of law.
“Issues cognizable on an appeal following a guilty plea are limited to issues based on ‘reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings’ resulting in the plea. [Citations.]” (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896.) Moreover, an appeal from a guilty plea will not lie unless the defendant files a written statement of the issues in the trial court and obtains a certificate of probable cause. (Pen. Code, § 1237.5) Two types of issues may be raised on appeal from a guilty plea without obtaining a certificate of probable cause: issues relating to the validity of a search and seizure and issues arising after entry of the plea that do not affect its validity. (Cal. Rules of Court, former rule 30(b)(4) (now rule 8.304); People v. Buttram (2003) 30 Cal.4th 773, 780.
In essence, defendant’s ineffective assistance of counsel claim is an assertion that there was no factual basis for his plea to violating Vehicle Code sections 23152(b) and 23550.5(a)(3), and his counsel was ineffective in failing to recognize that below. The People are correct that defendant is estopped by his guilty plea from asserting this issue on appeal.
In People v. Pinon (1979) 96 Cal.App.3d 904, the defendant pled guilty to possession of a firearm by an ex-felon (Pen. Code, § 12021). On appeal the defendant contended the plea was invalid because the record did not reflect a factual basis for his plea, in that his prior conviction was a misdemeanor, not a felony. (Id. at pp. 907, 909.) The defendant also asserted his counsel was incompetent for failing to recognize that fact. (Id. at p. 909.) In rejecting the defendant’s contention, the court stated, the “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 [the] defendant obtained a certificate of probable cause.” (Id. at p. 910.)
Defendant argues that Pinon should be reconsidered because it is “contrary to well-established decisional and constitutional law both as to the waiver and review ability of fundamental constitutional rights and effective assistance of counsel claims under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.” However, as noted by the People, in In re Troy Z. (1992) 3 Cal.4th 1170, 1180-1182, our Supreme Court discussed Pinon and affirmed its principles in holding that parents who pled no contest to a juvenile dependency petition’s jurisdictional allegations under Welfare and Institutions Code section 300, subdivision (e) (hereafter section 300(e)) were barred from asserting on appeal that their conduct did not fall within that section. Citing Pinon, the Troy Z. court expressly rejected the parents’ argument that the alleged legal inapplicability of section 300(e) to their conduct rendered their claims cognizable on appeal. (In re Troy Z., at p. 1181, fn. 11.) “Any other conclusion—i.e., allowing a parent to challenge jurisdiction findings on appeal after entering a valid no contest plea to those findings, and after the parties proceeded under the assumption that reunification services would not be offered—would not only violate the principles articulated in [Pinon and DeVaughn], but also frustrate the clear purpose of the [juvenile dependency] statutory scheme . . . .” (In re Troy Z., at pp. 1181-1182.) We see no reason to question Pinon’s reasoning or result.
Because defendant is estopped by his guilty plea from raising his counsel’s failure to challenge the lack of a factual basis for his plea, the issue is not cognizable on appeal whether or not he obtained a certificate of probable cause. (See People v. Pinon, supra, 96 Cal.App.3d at pp. 909-910.) In any event, defendant’s assertion that his counsel was deficient in failing to obtain a certificate of probable cause lacks merit. “There is nothing in the record before us to indicate that defendant sought to procure a certificate of probable cause or that he informed counsel that he wished to attack on appeal the validity of his guilty plea. In these circumstances, we are precluded by [Penal Code] section 1237.5 from reviewing that issue on the present appeal.” (Pinon, at p. 909.)
Disposition
The appeal is dismissed.
We concur. JONES, P.J., STEVENS, J.
Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.