Opinion
C042094.
10-30-2003
THE PEOPLE, Plaintiff and Respondent, v. WARREN EUGENE COURTNEY, Defendant and Appellant.
Defendant Warren Eugene Courtney pleaded no contest to one count of committing a lewd and lascivious act with a 14-year-old minor while defendant was more than 10 years older than the minor. (Pen. Code, § 288, subd. (c)(1).) The plea followed a decision of the trial court to exclude evidence relating to defendants defense of mistake of fact regarding the minors age.
Defendant contends his due process rights were violated by the courts decision. The People respond that defendants claim, which goes to the issue of guilt or innocence, has been waived on appeal by reason of his plea. The People are correct.
"`A guilty plea amounts to an admission of every element of the crime and is the equivalent of a conviction. [Citation.] For that reason, both before and after the enactment of [Penal Code] section 1237.5 and the addition of [California Rules of Court,] rule 31(d), issues going to the defendants guilt or innocence were not and are not cognizable on appeal, while those going to the jurisdiction of the court or the legality of the proceedings were and are reviewable. [Citations.]" (People v. Jones (1995) 10 Cal.4th 1102, 1109.)
In People v. Turner (1985) 171 Cal.App.3d 116, we discussed at length the types of issues that survive a guilty plea and those that are waived by virtue of the plea. For example, we noted: "guilty plea . . . concedes that the prosecution possesses legally admissible evidence sufficient to prove defendants guilt beyond a reasonable doubt. Accordingly, a plea of guilty waives any right to raise questions regarding the evidence, including its sufficiency or admissibility, and this is true whether or not the subsequent claim of evidentiary error is founded on constitutional violations." (Id. at p. 125.)
"We further explained: `A guilty plea also waives any irregularity in the proceedings which would not preclude a conviction. [Citation.] Thus irregularities which could be cured, or which would not preclude subsequent proceedings to establish guilt, are waived and may not be asserted on appeal after a guilty plea. [Citation.] In other words, by pleading guilty the defendant admits that he did that which he is accused of doing and he thereby obviates the procedural necessity of establishing that he committed the crime charged. In short, a guilty plea "admits all matters essential to the conviction." [Citation.] A defendant thereafter can raise only those questions which go to the power of the state to try him despite his guilt. In other words, in the language of the statute, defendant can only raise "grounds going to the legality of the proceedings." [Citations.]" (People v. Robinson (1997) 56 Cal.App.4th 363, 369.)
In his reply brief, defendant asserts that he "realizes that stare decisis will likely compel this court to follow respondents position and hold that the issue advanced on this appeal is foreclosed by such cases as People v. Jones . . . ." (Original italics.) Notwithstanding this concession, defendant insists we should entertain his appeal because he did not expressly forego his right to appeal, and in fact persuaded the trial judge to issue a certificate of probable cause. He observes that "[t]his entire imbroglio may be viewed as ineffective assistance of counsel, as a trap for the unwary, and/or as a totally wasteful byproduct of the current system of cutting down on appeals following guilty pleas."
The principal difficulty with this argument is that "[o]btaining a certificate of probable cause does not make cognizable those issues which have been waived by a plea of guilty. [Citation.]" (People v. Kaanehe (1977) 19 Cal.3d 1, 9; People v. Hunter (2002) 100 Cal.App.4th 37, 41-42.)
To the extent that defendant is suggesting that our refusal to consider the merits of his appeal violates an implicit term of his plea bargain agreement, or that trial counsel was ineffective for not advising defendant that his plea foreclosed appellate review on the merits, we are unpersuaded. First, we are not obliged to consider arguments raised for the first time in a reply brief, without citation to pertinent authority, in the absence of a showing of good cause, which defendant has not made. (See People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) Second, the claim, which seems to be premised on ineffective assistance of trial counsel, is not ripe for appellate consideration. Besides being raised belatedly, it has not been presented to the trial court for consideration in the first instance. Generally, a claim of ineffective assistance is more appropriately made in a habeas corpus proceeding than on appeal because the record on appeal may not reveal what is, in fact, a valid reason for defense counsels challenged conduct, while in a habeas corpus proceeding "the attorney has the opportunity to explain the reasons for his or her conduct." (People v. Wilson (1992) 3 Cal.4th 926, 936.) When an ineffective assistance of counsel claim is raised on appeal, "a reviewing court will reverse a conviction . . . `only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission." (People v. Frye (1998) 18 Cal.4th 894, 979-980, quoting People v. Fosselman (1983) 33 Cal.3d 572, 581.) "`If the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation[.]" (People v. Pope (1979) 23 Cal.3d 412, 426 [].)" (People v. Kipp (1998) 18 Cal.4th 349, 367.)
While it is true that trial counsel requested a certificate of probable cause, which suggests he was unaware of the pertinent legal rules cited above, on the other hand, counsel also negotiated a very favorable disposition of the case which, on balance, outweighed the detriment engendered by the adverse evidentiary ruling. Defendant originally was charged with five counts; four were dismissed as part of the plea, under which defendant was granted probation on condition he serve 270 days in jail, with work furlough recommended. In these circumstances, we are not inclined to conclude, in the absence of a more complete record, that defendant has shown the recommendation to plead no contest was an unwise tactical decision. The decision to plead very well may have included an assessment of the relatively slim chance of prevailing on appeal. For these reasons, we conclude defendant has not demonstrated counsel was ineffective.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., and DAVIS, J. --------------- Notes: There did not appear to be a problem of proof for the People since sheriffs deputies arrested defendant in flagrante delicto with the victim behind some bushes in his front yard.