Opinion
NOT TO BE PUBLISHED
Super. Ct. No. S05CRF0350
ROBIE, J.
Defendant Douglas Elsworth Drake pled guilty to felony driving under the influence (DUI). Defendant also admitted three prior convictions for the same offense pursuant to an agreement under which he would receive the middle term of two years. The court sentenced him to two years in state prison with time credits.
On appeal defendant contends the trial court erred in refusing to strike a Nevada prior conviction for DUI, asserting: 1) the Nevada prior was invalid because the record does not show that he knowingly and voluntarily waived his constitutional rights in pleading to the Nevada charge; and 2) the record does not establish that the conduct underlying the Nevada prior would qualify as a prior DUI conviction had it occurred in California. The People essentially contend that these two issues are not reviewable because defendant’s motion to strike the Nevada conviction was denied before defendant made his guilty plea, and the issues were not preserved for appeal as a part of the plea agreement. We agree with the People’s argument and therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On September 29, 2005, defendant drove a motor vehicle while under the influence of alcohol.
An information was filed that alleged four counts: 1) felony driving under the influence; 2) driving with a blood-alcohol level of .08 percent or higher; 3) driving a commercial vehicle under the influence of alcohol; and 4) driving on a suspended or revoked license. Counts I, II, and III each included four prior conviction allegations for the purpose of enhancing defendant’s sentence.
Defendant moved to strike two of the prior conviction allegations, one from Wyoming and the other from Nevada. The court granted defendant’s motion as to the Wyoming prior conviction, but denied the motion as to the Nevada prior conviction.
Thereafter, pursuant to a negotiated disposition, defendant pled guilty to count I and admitted the truth of the three remaining prior convictions, including the Nevada conviction the court refused to strike. The plea agreement did not preserve for appeal any issue concerning these prior convictions. The court sentenced defendant to two years in state prison, following the terms of the plea agreement.
DISCUSSION
I
Standard Of Review
On appeal defendant contends the trial court erred in denying his motion to strike the prior Nevada conviction.
We can review a conviction based on a guilty plea when “[t]he defendant has filed with the trial court a written statement . . . showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings” and “[t]he trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.” (Pen. Code, § 1237.5, subds. (a) & (b).)
All further statutory references are to the Penal Code unless otherwise indicated.
“‘“Obtaining a certificate of probable cause [however] does not make cognizable those issues which have been waived by a plea of guilty.”’” (People v. Hunter (2002) 100 Cal.App.4th 37, 41-42, citing People v. Meyer (1986) 183 Cal.App.3d 1150, 1157.) “What may not be appealed are ‘issues relating to [a defendant’s] guilt or to the procedure which would otherwise be required to establish his guilt.’ [Citation] What may be appealed are claims, ‘which, if true, would preclude the state from prosecuting [a defendant] despite his guilt.’” (People v. Halstead (1985) 175 Cal.App.3d 772, 778, fn. omitted, quoting People v. Turner (1985) 171 Cal.App.3d 116, 126-127.) “‘“[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.”’” (People v. Whitfield (1996) 46 Cal.App.4th 947, 959, citing People v. Halstead, supra, 175 Cal.App.3d at p. 778.) This rule does not restrict us to review of the specific issues listed within a certificate of probable cause, but the “filing [of] a certificate cannot expand the scope of review to include a noncognizable issue.” (People v. Hoffard (1995) 10 Cal.4th 1170, 1178.)
There are only two exceptions to the limitations of section 1237.5 for appeal after a plea of guilty; specifically, “[t]he defendant need not comply with [section 1237.5] if the notice of appeal states that the appeal is based on: [¶] (A) The denial of a motion to suppress evidence under Penal Code section 1538.5; or [¶] (B) Grounds that arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 8.304(b)(4).) If either of these exceptions is met, the trial court does not need to issue a certificate of probable cause for the appellate court to hear the appeal.
II
Defendant’s Challenge To The Denial Of His Motion To Strike Does Not Fall Within The Exceptions To Section 1237.5
On appeal defendant seeks to challenge the trial court’s denial of his preplea motion to strike his Nevada conviction. This issue does not fall within the exceptions listed under California Rules of Court, rule 8.304(b)(4). This is not an appeal based on a section 1538.5 motion at the trial level, and the grounds for this issue arose before the entry of the plea since that is when the trial court denied defendant’s motion to strike the prior.
Defendant argues that this case is similar to People v. Cole (2001) 88 Cal.App.4th 850, where an adversarial hearing was held concerning the magnitude of the sentence to be imposed by the court. Defendant’s case does not resemble Cole, however, because here the motion was made preplea, whereas in Cole the motion was made postplea. (Id. at pp. 869-872.) In Cole, the appellate court found that the defendant was allowed to challenge the denial of a motion to strike the prior felony convictions because an adversary hearing was held after the plea had been made in order to determine the defendant’s exact sentence. (Id. at pp. 870-871.) Thus, the appeal in Cole was based on “[g]rounds that arose after entry of the plea.” (Cal. Rules of Court, rule 8.304(b)(4).)
Here, in contrast, defendant made the motion to strike his prior DUI convictions before admitting those prior convictions in his plea. The plea agreement was made after the motion was denied as to the Nevada conviction, and nothing in the agreement provided for the trial court’s discretion in striking his prior convictions at sentencing or preserved his right to challenge the trial court’s earlier ruling on appeal. Accordingly, defendant’s appeal is not based on grounds that arose after entry of the plea.
III
Defendant’s Challenge To The Denial Of His Motion To Strike Does Not Meet The Statutory Requirements For Our Consideration Under A Certificate Of Probable Cause And Was Not Preserved For Appeal As Part Of The Plea Agreement
Even with a certificate of probable cause, we are limited by section 1237.5 to reviewing reasonable “constitutional, jurisdictional, or other grounds going to the legality of the proceedings.” (People v. Hunter, supra, 100 Cal.App.4th at p. 42, italics added.)
Defendant’s challenge to the denial of his motion to strike is not reviewable even with a certificate of probable cause because it does not go to the legality of the proceedings. Defendant argues his admitted Nevada conviction is invalid in California. By admitting the Nevada prior as part of his plea agreement, defendant waived any right he had to challenge the trial court’s previous ruling regarding that prior conviction unless he expressly reserved the right to appeal on that issue as part of the plea agreement.
Citing People v. Crane (2006) 142 Cal.App.4th 425, defendant contends he preserved his right to challenge on appeal the denial of his motion to strike. Not so. In Crane, the defendant admitted a prior DUI but expressly “reserv[ed] his right to appeal the issue of whether it qualified as a prior conviction.” (Id. at p. 430.) Defendant’s case is distinguishable from Crane because here there was no express reservation of a right of appeal within the plea agreement. It is true, as defendant himself notes, that “[t]he trial court repeatedly encouraged [him] to [appeal] prior to the entry of the plea.” Earlier discussions before the plea, however, are not enough to preserve the right of appeal when the plea itself does not expressly reserve that right. (See People v. Castro (1974) 42 Cal.App.3d 960 [appeal concerning denial of motion to disclose identity of informant did not survive guilty plea where defendant’s plea agreement did not stipulate to preservation even though preservation of the issue for appeal had been discussed at the plea negotiations].)
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON , Acting P.J., MORRISON , J.