Opinion
C099131
08-08-2024
THE PEOPLE, Plaintiff and Respondent, v. DAVID JACKSON, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. Nos. 21FE00038, 22FE020946
HULL, ACTING P.J.
Defendant David Jackson pleaded no contest to felony charges and admitted a prior strike conviction (Pen. Code, § 246.3) in two separate cases (unless otherwise stated, statutory section citations that follow are to the Penal Code). A conviction under section 246.3 is only a strike if defendant personally used the firearm in the commission of the offense. On appeal, defendant claims there is no evidence he personally used a firearm in the commission of the prior strike offense.
Defendant obtained a certificate of probable cause only "to raise the issue of ineffective assistance of counsel." We requested supplemental briefing on whether obtaining a certificate of probable cause expands the grounds of an appeal to include issues waived by a no contest plea. Defendant entered into two plea agreements and his admissions were integral to those agreements. His claim does not go to the legality of his plea agreements; thus his claim is not cognizable on appeal. We dismiss the appeal.
FACTS AND HISTORY OF THE PROCEEDINGS
In case No. 21FE00038, defendant pleaded no contest to possession of a controlled substance with a loaded and operable firearm (Health &Saf. Code, § 11370.1, subd. (a)) and admitted a prior strike conviction. The trial court advised defendant of his constitutional rights, confirmed defendant understood the consequences of his plea, found defendant's plea was voluntary, and dismissed the remaining counts.
In case No. 22FE020946, defendant pleaded no contest to possession of methamphetamine and a firearm (Health &Saf. Code, § 11370.1, subd. (a)) and possession of a controlled substance for sale (Health &Saf. Code, § 11351), and admitted a prior strike conviction, in exchange for a four-year sentence to be served consecutive to the sentence in case No. 21FE00038. The trial court dismissed the other charges and allegations.
Prior to taking defendant's plea in 22FE020946, the trial court and defense counsel confirmed the terms of the plea agreement. The trial court advised defendant of his constitutional rights, confirmed defendant understood the consequences of his plea, and found that defendant's plea was voluntary.
After taking defendant's plea in case No. 22FE020946, the trial court sentenced defendant to an aggregate term of eight years in both cases. In case No. 21FE00038, it sentenced defendant to the low term of two years, doubled due to the prior strike conviction. In case No. 22FE020946, the trial court sentenced defendant to a consecutive one year (one-third the middle term), doubled due to the prior strike conviction on the possession of methamphetamine and a firearm count and a consecutive one year (one-third the middle term), doubled due to the prior strike conviction for the possession of heroin for sale count.
Defendant requested a certificate of probable cause on the basis that his defense counsel provided ineffective assistance of counsel, which the trial court granted. We ordered supplemental briefing to address the issue of whether obtaining a certificate of probable cause expands the grounds of an appeal to include issues waived by a no contest plea.
DISCUSSION
On appeal defendant claims insufficient evidence supported his prior strike admission. The crime of discharging a firearm in a grossly negligent manner under section 246.3 qualifies as a prior strike if "defendant personally uses a firearm." (§ 1192.7, subd. (c)(8); People v. Leslie (1996) 47 Cal.App.4th 198, 201-205 [a § 246.3 conviction qualified as a prior strike where the defendant, when pleading no contest to the current offense, admitted he personally used the firearm in a prior offense].) Defendant argues the trial court erred in doubling his sentence pursuant to the prior strike conviction.
Without mentioning the certificate of probable cause, the People argue the appeal is not cognizable on appeal because defendant's admissions that he suffered a prior strike conviction under Penal Code section 1192.7, subdivision (c) admitted every element of the enhancement, including that defendant personally used a firearm. Because neither party directly addressed whether obtaining a certificate of probable cause claiming ineffective assistance of counsel rendered defendant's challenge to the sufficiency of the evidence cognizable on appeal, we requested supplemental briefing to determine whether the appeal should be dismissed.
Defendant argues in his supplemental briefing the appeal is authorized by section 1237, not 1237.5, and a certificate of probable cause is not required because defendant is "attacking the true finding of the prior [strike] conviction." The People argue the appeal is governed by section 1237.5 because defendant entered into a no contest plea and the prior strike admission was "an integral part of a plea agreement." (People v. Johnson (2009) 47 Cal.4th 668, 678.) We agree with the People. Here, defendant pleaded no contest in two separate cases and therefore the requirements of section 1237.5 apply. (People v. Perry (1984) 162 Cal.App.3d 1147, 1151; People v. Lobaugh (1987) 188 Cal.App.3d 780, 785; People v. Maultsby (2012) 53 Cal.4th 296, 302 [distinguishing Perry and Lobaugh on the basis both cases involved plea agreements, not a jury conviction.])
Section 1237.5 provides the procedure for the perfection of an appeal after a plea of guilty or no contest. (People v. Turner (1985) 171 Cal.App.3d 116, 124.) "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." (People v. DeVaughn (1977) 18 Cal.3d 889, 895.) "The issuance of a certificate of probable cause pursuant to section 1237.5 does not operate to expand the grounds upon which an appeal may be taken as that section relates only to the 'procedure in perfecting an appeal from a judgment based on a plea of guilty.'" (Id. at p. 896.) The fact that defendant obtained a certificate of probable cause does not make any issues waived by a guilty plea cognizable on appeal. (Turner, at p. 125.)
On appeal, the critical inquiry is whether defendant's challenge to the sufficiency of evidence of his prior strike admission is in substance an attack on the validity of the plea. (People v. Arias (2020) 52 Cal.App.5th 213, 221.) A plea of no contest admits every element of an alleged crime and waives a challenge on appeal of insufficient evidence. (People v. Thomas (1986) 41 Cal.3d 837, 844.) Here, defendant expressly admitted the prior strike and therefore defendant admitted all elements of section 246.3, including personal use of the firearm. "Admissions of enhancements are subject to the same principles as guilty pleas." (People v. Lobaugh, supra, 188 Cal.App.3d at p. 785.) Defendant concedes as much.
By his no contest plea, defendant waived his challenge to the sufficiency of evidence which does not go to the legality of the proceeding but is an attack on the plea which may not be raised on appeal. (People v. Lobaugh, supra, 188 Cal.App.3d at p. 785; Thomas, at p. 844.) Defendant's claim is non-cognizable in this appeal.
DISPOSITION
The appeal is dismissed.
We concur: RENNER, J., FEINBERG, J.