Opinion
D072240
03-29-2018
THE PEOPLE, Plaintiff and Respondent, v. ADOLFO FLORES, Defendant and Appellant.
Angela Bartosik, Chief Deputy Public Defender, Charles Millioen, IV and Robert Louis Ford, Deputy Public Defenders, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD270314) APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Appeal dismissed. Angela Bartosik, Chief Deputy Public Defender, Charles Millioen, IV and Robert Louis Ford, Deputy Public Defenders, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
Following an unsuccessful attempt to cash a stolen check, Defendant Adolfo Flores pled guilty to two felonies: unauthorized use of personal identifying information of another (Pen. Code, § 530.5, subd. (a)) and burglary (§ 459). After entry of his guilty plea but before sentencing, Flores moved to reduce the charges to misdemeanors in light of intervening case authority that purportedly rendered his felony plea unlawful. The court partially granted the requested relief; it reduced the burglary charge but left the felony identity theft count unaltered.
Further statutory references are to the Penal Code unless otherwise indicated.
Flores appeals, ostensibly from the partial denial of his motion. Yet his appeal suffers a fatal flaw that precludes us from reaching its merits. In substance, Flores's appeal challenges the lawfulness of his underlying plea. It thus requires a certificate of probable cause—which Flores neither sought nor obtained. Accordingly, we must dismiss his appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Flores entered a business that provides check cashing services in an apparently unsuccessful attempt to cash a check. It was subsequently uncovered that the check, made out to Flores for $365 but unendorsed, was stolen.
The parties stipulated to the facts of Flores's offenses as stated in the probation report for the purposes of further judicial review. These facts are taken from there.
Based on the attempt to cash a stolen check, Flores was arrested and charged with two felonies: using the personal identifying information of another (§ 530.5, subd. (a), count one) and burglary (§ 459, count two). A prior strike was also alleged. (§§ 667, subds. (b)-(i), 1170.12, 668.) On the condition that the court should "strongly consider striking the prior strike [and] imposing probation," Flores pled guilty to both felony charges and admitted the prior strike allegation.
Before sentencing, Flores's counsel moved to reduce both convictions to misdemeanors in light of a new Supreme Court case, People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales), which considered the misdemeanor shoplifting statute (§ 459.5) enacted as part of Proposition 47. The motion, characterized as one for "Proposition 47 Relief," asserted that Gonzales "ma[de] clear that the use of personal identifying information, particularly stolen checks, to commit theft under $950 amounts to shoplifting." His trial counsel later clarified to the court that Flores was "ask[ing] the [c]ourt to actually make a finding at this time that both Count 1 [section 530.5, subd. (a)] and Count 2 [section 459], . . . are considered shoplifting charges." The People conceded that the section 459 burglary count should have been charged as misdemeanor shoplifting, but argued that the section 530.5 identity theft count was unaffected by Gonzales.
The trial court granted the requested relief as to the burglary offense, but only to an extent. It did not convert the charge to one under section 459.5. Rather, it reduced the count to a misdemeanor under section 17, subdivision (b). The court denied the motion as to the felony identity theft count.
Flores's counsel also filed a Romero motion to strike the prior strike, which the court granted. After ruling on the motions, the court suspended imposition of Flores's sentence pending his successful completion of three years' probation.
See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
A notice of appeal was filed less than a week after sentencing, specifying that "[t]his appeal is based on the sentence or other matters occurring after the plea." Flores did not seek a certificate of probable cause.
DISCUSSION
Flores argues that under Gonzales, his offense constituted misdemeanor shoplifting and thus his felony conviction for identity theft should be dismissed entirely or, alternatively, reduced to a misdemeanor. As a threshold matter, the People contend that Flores's claims are procedurally barred because he failed to obtain a certificate of probable cause. We agree with the People.
Generally, a defendant appealing from a guilty or nolo contendere plea must first obtain a certificate of probable cause from the trial court pursuant to section 1237.5. (People v. Mendez (1999) 19 Cal.4th 1084, 1095 (Mendez).) "The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas. [Citations.] The objective is to promote judicial economy 'by screening out wholly frivolous guilty [and nolo contendere] plea appeals before time and money is spent preparing the record and the briefs for consideration by the reviewing court.' [Citations.]" (People v. Panizzon (1996) 13 Cal.4th 68, 75-76 (Panizzon).)
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 causes for such appeal with the clerk of court."
There are two well-settled exceptions to section 1237.5. Without a certificate, the defendant may appeal (1) search and seizure issues that fall under section 1538.5, subdivision (m), and (2) "issues regarding proceedings held subsequent to the plea for purposes of determining the degree of the crime and the penalty to be imposed." (Panizzon, supra, 13 Cal.4th at pp. 74-75; see Cal. Rules of Court, rule 8.304(b).)
To determine whether an appeal from a guilty plea requires a certificate of probable cause, we "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.' " (Panizzon, supra, 13 Cal.4th at p. 76.) We are to apply section 1237.5 "in a strict manner." (Mendez, supra, 19 Cal.4th at p. 1098.)
The People argue that Flores's appeal amounts to "an attack on the plea itself" and therefore requires a certificate of probable cause. In response, Flores contends that his appeal challenges the trial court's post-plea refusal to designate his felony section 530.5, subdivision (a) conviction as a misdemeanor and thus falls within the second general exception to section 1237.5. But he implicitly concedes that—at least insofar as he seeks dismissal of his identity theft conviction—his appeal is indeed an attack on his plea. He asserts we can still reach that request, sans certificate, by construing his appeal as a petition for writ of habeas corpus.
We first consider whether Flores's appeal turns on an "issue[] regarding proceedings held subsequent to the plea for purposes of determining the degree of the crime and the penalty to be imposed." (Panizzon, supra, 13 Cal.4th at p. 75.) It does not.
Despite the type of relief requested, it is apparent that the substance of Flores's appeal challenges the validity of his plea. Flores specifically pled guilty to felony identity theft, and now argues that it should be reduced to a misdemeanor because the count "violates the intent of Proposition 47." Thus, he is not challenging the court's discretionary refusal to designate his offense as a misdemeanor, but arguing that the court was required to designate his offense as a misdemeanor because his plea was rendered unlawful by Gonzales. "Claims regarding the illegality of the judgment, whether on jurisdictional or other grounds, are precisely the types of claims which are covered by . . . section 1237.5 and require a certificate of probable cause." (People v. Jones (1995) 33 Cal.App.4th 1087, 1092; accord, People v. Zuniga (2014) 225 Cal.App.4th 1178, 1184.) Accordingly, we cannot reach the merits of Flores's appeal without a certificate of probable cause.
The trial court construed Flores's "Motion for Proposition 47 Relief" as one under section 17, subdivision (b). That section "gives the trial court discretion to reduce certain felonies, often referred to as wobblers, to misdemeanors." (People v. Mullins (2018) 19 Cal.App.5th 594, 611, italics added.) However, in invoking section 17, subdivision (b)—which neither of the parties relied upon—the court appeared to understand its act in reducing the charge as mandatory, not discretionary: "I believe that based on the Gonzales case, it is clear that Count 2, the [section 459 charge], must be reduced to a misdemeanor at this point based on case law Prop 47 [sic], so . . . Count 2 will be 17(b) [sic]." (Italics added.) Flores's appeal neither explicitly nor substantively rests on section 17, subdivision (b). (See Mullins, at p. 611 [noting that the "pertinent factors" typically relevant to a section 17, subdivision (b) decision include "the circumstances of the offense, the defendant's appreciation of and attitude toward the offense, and the defendant's character as evidenced by the defendant's behavior and demeanor at trial"].) As such, we decline to view his appeal as one from denial of a proper section 17, subdivision (b) motion and express no view as to whether such an appeal would require a certificate of probable cause. --------
Nor can we reach the merits by, as Flores requests, construing his appeal as a petition for writ of habeas corpus. Our Supreme Court has strongly criticized the practice of reaching the merits of a certificateless appeal in order to preclude a later petition for writ of habeas corpus. (Panizzon, supra, 13 Cal.4th at p. 89, fn. 15; see also Mendez, supra, 19 Cal.4th at p. 1098.) While perhaps a nuanced distinction can be drawn between considering the merits of an issue to avoid a later petition for writ of habeas corpus and treating an appeal as a petition for writ of habeas corpus, we think such is a distinction without difference. The underlying rationale of both approaches is the same: judicial economy. (See, e.g., People v. Vest (1974) 43 Cal.App.3d 728, 731-732; People v. Jerome (1984) 160 Cal.App.3d 1087, 1094-1095, fn. 4.) And, as our colleagues have pointed out on more than one occasion, "[I]t was that very concern—judicial economy—which motivated the adoption of section 1237.5 in the first place!" (People v. Ballard (1985) 174 Cal.App.3d 982, 987 (Ballard); accord, People v. Pinon (1979) 96 Cal.App.3d 904, 909 (Pinon) [same]; see also Panizzon, supra, 13 Cal.4th at p. 89, fn. 15 [citing Ballard and Pinon with approval].) Thus, we decline Flores's invitation to consider this appeal as a petition for writ of habeas corpus. Of course, our dismissal is without prejudice to his ability to raise this issue in a later petition for writ of habeas corpus.
DISPOSITION
The appeal is dismissed.
DATO, J. WE CONCUR: NARES, Acting P. J. O'ROURKE, J.