Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF114162A, Lee Phillip Felice, Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Rachelle A. Newcomb, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
Defendant Leonard Knox appeals from a judgment of conviction based on a plea of guilty to being an ex-felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) and admissions that on August 24, 2000, he suffered a prior conviction for violating section 12031, subdivision (a)(2)(C) (section 12031(a)(2)(C)) and that this conviction qualified as a prior felony conviction within the meaning of the three strikes law (§§ 667, subd. (b)-(i), 1170.12) The underlying plea agreement included a 32-month lid on defendant’s prison term, which represented the low term of 16 months for the instant offense, doubled pursuant to the three strikes law (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)).
All further statutory references are to the Penal Code.
On appeal, defendant contends the trial court erred in sentencing him under the three strikes law because his prior section 12031(a)(2)(C) conviction did not qualify as a strike either as a matter of law or under the facts reflected in the record of his prior conviction. We conclude that defendant’s challenge to the trial court’s authority to sentence him under the three strikes law is in substance a challenge to the validity of the negotiated plea. Therefore, defendant’s failure to secure a certificate of probable cause bars consideration of this challenge and requires dismissal of his appeal.
The trial court denied a postplea motion by defendant to dismiss his prior strike conviction on a similar ground and sentenced him to 32 months. For reasons discussed below, we reject defendant’s claim that the certificate of probable cause requirement is inapplicable because, as part of the negotiated plea, he explicitly reserved the right to argue at sentencing, and thus on appeal, that his prior conviction did not qualify as a strike. (Cf. People v. Watts (2005) 131 Cal.App.4th 589, 592 [“Watts reserved the right to argue at sentencing, and indeed argued at sentencing, that his prior conviction did not qualify as a ‘strike.’”].)
BACKGROUND
On March 28, 2006, a residential parole search uncovered a loaded shotgun underneath the mattress of defendant’s bed. He was charged with being an ex-felon in possession of a firearm with four sentencing enhancements. Following the denial of defendant’s motion to suppress evidence, the parties appeared before Judge Oberholzer on June 23, 2006, and announced a plea agreement under which defendant would plead guilty to the instant offense and admit the strike prior in exchange for a 32-month lid on his prison sentence and dismissal of the remaining enhancements, including a gang enhancement, a prior serious felony enhancement, and a prior prison term enhancement.
At the time of the plea, the trial court explained the sentencing provision of the plea agreement to defendant as follows: “The maximum term you can serve for this offense under the conditions of this negotiated plea is 32 months in prison. Because you have a strike prior, you must spend 80 percent of the time in custody before you’ll be eligible for parole, which means a little more than two years.”
Defendant then sought, through counsel, reassurance that the instant offense to which he was pleading guilty was not a strike. The court assured defendant that the offense was not a strike but observed that, as part of the plea, defendant would be admitting he had a strike prior. Defendant responded: “Yeah. Yes.” Defense counsel added: “What he told me, Your Honor, at the time of sentencing he will challenge it under Romero and lid as a strike. I will bring that motion before Judge Felice at the time.” The court replied that there was no guarantee that such motion would be granted and defense counsel acknowledged this was true. Defendant then formally entered his guilty plea and admitted the strike prior, and the People moved to dismiss the remaining enhancements.
Defendant subsequently filed a motion to withdraw his guilty plea on the ground his prior conviction for violating section 12031(a)(2)(C) did not constitute a felony under People v. Robles (2000) 23 Cal.4th 1106 (Robles), a decision filed by our Supreme Court on August 14, 2000. Defendant also cited this court’s later decision in People v. Watts, supra, 131 Cal.App.4th 589 (Watts). In support of the motion, defense counsel declared that defendant’s prior conviction was based on a plea agreement entered in July 2000, and that the record failed to show whether defendant’s admission of violating section 12031(a)(2)(C) included an admission of each of the section 186.22(a) elements as required under Robles.
Section 12031(a)(2)(C) provides that the misdemeanor offense of carrying a loaded firearm on one’s person in a vehicle or in public (§ 12031, subd. (a)(1)) qualifies as a felony “[w]here the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22 [(section 186.22(a))].” In Robles, supra, 23 Cal.4th 1106, our Supreme Court, noting that section 12031(a)(2)(C) did not actually define the term “active participant in a criminal street gang,” interpreted the statutory language to mean that “carrying a loaded firearm in public becomes a felony under section 12031(a)(2)(C) when a defendant satisfies the elements of the offense described in section 186.22(a).” (Robles, supra, 23 Cal.4th at p. 1115.) Recently, the Supreme Court clarified that “to establish the elements of section 186.22, among other things, the prosecution must prove that the charged gang member willfully promoted, furthered, or assisted members of his gang in felonious criminal conduct that is distinct from his otherwise misdemeanor conduct of carrying a loaded firearm in public or carrying a concealed weapon on his person. This conclusion applies to the substantive charge that defendant is an active participant of a criminal street gang (§ 186.22(a)) and to the gun offenses that elevate to felonies only upon proof that defendant satisfied Robles’s requirements under section 186.22(a).” (People v. Lamas (2007) 42 Cal.4th 516, 520.) The elements of the offense described in section 186.22 (a) are as follows: “‘[1] actively participat[ing] in any criminal street gang [2] with knowledge that its members engage in or have engaged in a pattern of criminal gang activity’ and [3] ‘willfully promot[ing], further[ing], or assist[ing] in any felonious criminal conduct by members of that gang.’ (§ 186.22(a).)” (Robles, supra, 23 Cal.4th at p. 1115, italicized brackets added.)
Defense counsel acknowledged that, in contrast with Watts, there had been a preliminary hearing in defendant’s 2000 case, and that the People had elicited testimony from a gang expert addressing the section 186.22(a) elements. However, defense counsel asserted that the gang expert’s testimony had been insufficient to satisfy the knowledge element, stating: “[T]he gang expert only answered in [the] affirmative that in his opinion [the fact] the East Side Crips are engaged in an ongoing pattern of criminal gang activities is [a] fact of common knowledge. This falls short of the requirement that [defendant] has personal knowledge that East Side Crips are engaging in a pattern of criminal street gang activity.”
Defense counsel further declared:
“Though I had discussed with [defendant] prior to his plea of guilty that I would ask the court to dismiss the prior conviction as a strike under the authority of Robles and Watts cases, I did not become aware of the possibility of attacking his 2000 felony conviction through a writ of habeas corpus as a felony based on the change of law that requires all elements of Penal Code section 186.22(a) to be present for felony conviction under Penal Code section 12031(a)(2)(C).”
The same day defendant filed his withdrawal motion, he filed a motion to dismiss his strike prior under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), and described, in the supporting memorandum of points and authorities, factors relevant to a Romero motion, including the nature of the current offense and his prior criminal conduct. Defendant also requested the court to dismiss his strike prior on essentially the same ground presented in his withdrawal motion, namely, that his prior section 12031(a)(2)(C) conviction did not qualify as a strike because he did not admit, and the underlying record failed to establish, all the section 186.22(a) elements had been met.
On the morning of August 29, 2006, defendant’s motion to withdraw his guilty plea was heard first by Judge Oberholzer and denied. That afternoon, the matter came on before Judge Felice for hearing on defendant’s motion to dismiss his strike prior and sentencing. Argument of counsel focused on whether defendant’s prior section 12031(a)(2)(C) conviction qualified as a strike. The People relied on the arguments they raised in their written opposition to defendant’s motion to withdraw his guilty plea. Specifically, the People argued the gang expert’s testimony was sufficient to satisfy the knowledge element of section 186.22 (a), and, therefore, even if defendant did not enter admissions to each element of section 186.22(a), the record of his prior conviction was nonetheless sufficient to establish a felony violation of section 12031(a)(2)(C).
Thus, the prosecutor stated: “Your Honor, we did file an opposition to the motion to withdraw plea, which encompassed basically the same considerations as it related to whether or not this was a strike. It’s the People’s position that it is in fact a strike under both statutory and case law, and did not file a specific response to the Romero request itself, because it was included in the other paper.”
After granting the People’s request to take judicial notice of the preliminary hearing transcript of defendant’s prior conviction, the court rejected defendant’s argument that the gang expert’s testimony was insufficient to establish the knowledge element of section 186.22(a), reasoning: “I don’t believe there is a necessity to establish direct evidence and I don’t know how you would establish or – establish the element by use of direct evidence. Knowledge is a state of mind, and I think it’s customarily established circumstantially. So at this time, your motion to strike the prior is denied .…”
The court then sentenced defendant to the previously agreed-upon lid of 32 months. Defendant filed a notice of appeal, stating that an issue to be raised was “Court refusal to dismiss gang strike prior.” Defendant did not obtain a certificate of probable cause.
DISCUSION
On appeal, defendant contends the trial court erred in sentencing him under the three strikes law because his prior conviction for violating section 12031(a)(2)(C) did not qualify as a strike, either as a matter of law or on the facts reflected in the record of his prior conviction. Defendant takes the novel position that a violation of section 12031(a)(2)(C) may never qualify as a strike under section 1192.7, subdivision (c)(28). Alternatively, he argues that even if section 12031(a)(2)(C) could qualify as a strike under section 1192.7, subd. (c)(28), the trial court erred in applying the three strikes law in this case because the prosecution failed to prove the necessary elements. Defendant concludes by requesting that “the strike allegation be dismissed for insufficient evidence.”
Neither party suggests defendant’s 2000 conviction could qualify as a strike on any basis other than as set out in subdivision (c)(28) of section 1192.7. Section 1192.7, subdivision (c)(28), passed by the electorate in Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, includes among the list of serious felonies “‘any felony offense, which would also constitute a felony violation of Section 186.22.’” Our Supreme Court has held that, for purposes of determining whether a prior conviction is a serious offense within the meaning of the three strikes law, section 1192.7, subdivision (c)(28) includes not only the substantive offense of active participation in a criminal street gang defined in section 186.22(a), but also any felony offense committed for the benefit of a criminal street gang, as defined in section 186.22(b)(1). (People v. Briceno (2004) 34 Cal.4th 451, 456, 464.)
The People counter this appeal should be dismissed because defendant’s argument on appeal is, in effect, a challenge to the validity of the plea requiring a certificate of probable cause. We agree, and conclude that a determination of the merits in the case is beyond our reach because defendant’s argument challenges the plea’s validity, and he has failed to obtain a certificate of probable cause.
“[S]ection 1237.5 provides that a defendant may not take an appeal from a judgment of conviction entered on a plea of guilty or nolo contendere unless he has filed in the superior court a statement of certificate grounds, which go to the legality of the proceedings, including the validity of his plea, and has obtained from the superior court a certificate of probable cause for the appeal. [Citation.]” (People v. Mendez (1999) 19 Cal.4th 1084, 1095.) “With that said, section 1237.5 admits of this exception: The defendant may take an appeal without a statement of certificate grounds or a certificate of probable cause if he does so solely on noncertificate grounds, which go to postplea matters not challenging his plea’s validity and/or matters involving a search or seizure whose lawfulness was contested pursuant to section 1538.5. [Citations.]” (People v. Mendez, supra, 19 Cal.4th at p. 1096.)
In People v. Shelton (2006) 37 Cal.4th 759 (Shelton), our Supreme Court held that, to raise a claim of sentencing error under section 654, a defendant who has pleaded guilty must obtain a certificate of probable cause if the plea agreement specifies a sentence lid. The Supreme Court reasoned: “[I]nclusion of a sentence lid implies a mutual understanding and agreement that the trial court has authority to impose the specified maximum sentence and preserves only the defendant’s right to urge that the trial court should or must exercise its discretion in favor of a shorter term. Accordingly, a challenge to the trial court’s authority to impose the lid sentence is a challenge to the validity of the plea requiring a certificate of probable cause.” (Shelton, supra, 37 Cal.4th at p. 763, italics added.)
Shelton was decided on January 5, 2006, six months before defendant entered the plea in this case.
By urging that the trial court erred in sentencing him under the three strikes law because his prior conviction of violating section 12031(a)(2)(C) did not qualify as a strike, defendant is necessarily urging that the trial court could not lawfully impose the lid sentence. Like the Supreme Court in Shelton, we conclude that defendant’s challenge to the trial court’s sentencing authority is in substance a challenge to the validity of the negotiated plea requiring a certificate of probable cause.
The core rationale of Shelton is that the plea bargain contract must give effect to the mutual intention of the parties. (Shelton, supra, 37 Cal.4th at p. 767.) In this case the agreement’s terms regarding sentencing were, in essence, that the court would sentence defendant to the low term of 16 months for the substantive offense and double it based on defendant’s admission of the strike prior, with the understanding the maximum sentence allowable under the three strikes law was the 32-month term defendant received. In exchange, the prosecution would dismiss the remaining enhancements, including a gang enhancement which, alone, carried a potential, additional term of up to four years. (§ 186.22, subd. (b)(1)(A) [“the person shall be punished by an additional term of two, three, or four years at the court’s discretion”].) From a prosecutor’s point of view, such an agreement necessarily implies an understanding and belief that the stated maximum sentence under that law is a sentence that the trial court may lawfully impose. If the prosecutor understood or believed that the trial court lacked authority to impose that sentence, the benefit gained by giving up the possibility of a greater sentence with conviction on the additional dismissed charges would be illusory. (Shelton, supra, 37 Cal.4th at p. 768.)
“From a defendant’s point of view, the purpose of a sentence lid is to protect the defendant from a greater sentence. Thus, a sentence lid provision in a plea agreement necessarily implies the defendant’s understanding and belief that in its absence the trial court might lawfully have imposed a greater sentence. If the maximum sentence authorized by law were at or below the specified sentence lid, the lid provision would be superfluous and of no benefit to the defendant.” (Shelton, supra, 37 Cal.4th at p. 768.) Thus, to challenge the trial court’s authority to impose the acknowledged maximum sentence, it was incumbent upon defendant to reserve such a right in the plea bargain. (See id. at p. 769.)
Contrary to his assertions on appeal, defendant did not expressly reserve the right to challenge the court’s authority to impose the 32-month sentencing lid. Defendant relies heavily on defense counsel’s statement during the plea hearing that, “at the time of sentencing [defendant] will challenge it under Romero and lid as a strike.” According to defendant, “the statement can be read no other way than an express intention to challenge to the prior conviction both under Romero, and ‘as a strike.’” When viewed in context, however, it appears that defense counsel was, at most, preserving defendant’s “right to ‘argue for a lesser term’ … [by] urg[ing] the trial court to exercise its sentencing discretion [under Romero] in favor of imposing a punishment that is less severe than the maximum punishment authorized by law.” (Shelton, supra, 37 Cal.4th at p. 768.)
Our Supreme Court noted that “a prosecutor and a defendant may enter into a negotiated disposition that expressly recognizes a dispute or uncertainty about the trial court’s authority to impose a specified maximum sentence – because of Penal Code section 654’s multiple punishment prohibition or for some other reason – and preserves the defendant’s right to raise that issue at sentencing and on appeal. [Citation.] In that situation, the plea agreement’s validity and enforceability would be unaffected by the ultimate resolution of the disputed issue because each party could be understood to have expressly or impliedly accepted and assumed the risk that the issue would be resolved in the opposing party’s favor.” (Shelton, supra, 37 Cal.4th at p. 769, italics added.)
Here, defense counsel’s statement that defendant was planning to challenge his prior conviction “under Romero and lid as a strike” falls far short of what Shelton requires. The terms of the plea agreement do not reflect that, in entering their plea agreement, the People and defendant expressly recognized the existence of a dispute or uncertainty about the court’s authority to impose the specified sentence lid. There was no written plea agreement but the terms of the plea were stated at the change of plea hearing. The court specifically explained and defendant confirmed he understood that pursuant to the plea agreement, he was admitting a strike prior and that it would expose him to a maximum prison sentence of 32 months based on application of the three strikes law, and he would be required to spend 80 percent of that time in custody before becoming eligible for parole.
On this record, a reasonable interpretation of defense counsel’s somewhat ambiguous statement that defendant was going to “challenge it under Romero and lid as a strike” was that defendant was going to request the trial court to exercise its discretion, in the common legal parlance, to “strike” the prior strike allegation, thus resulting in a shorter term than the lid sentence. We find no compelling basis for concluding the prosecutor would have understood defense counsel to mean defendant was planning to argue that the court could not lawfully impose the lid term they agreed to because defendant’s prior conviction did not qualify as a strike. The People’s agreement to dismiss all the remaining enhancements in defendant’s favor also militates against inferring that the People consented to a reservation of the right to challenge the court’s authority to impose the one enhancement defendant did admit.
Although defense counsel subsequently stated that prior to the plea, he had advised defendant that he intended to argue at sentencing that defendant’s prior conviction did not qualify as a strike under Watts and Robles, this is not evidence of the parties’ mutual intentions at the time the plea agreement was entered. “[T]he undisclosed intentions of a party to a contract do not furnish a basis for its modification.” (Bratnober v. Bratnober (1957) 48 Cal.2d 259, 270-271.) There is no record indication that defendant disclosed to the prosecution his intention to challenge his prior conviction on the grounds discussed in Watts and Robles. The only specific authority to which defense counsel alluded to during the plea hearing was Romero. Thus, the only matter clearly left open after the plea agreement regarding the strike prior was the trial court’s decision whether to dismiss the strike prior under Romero. To make this decision, the trial court would not be required to resolve the issue of whether the prior section 12031(a)(2)(C) conviction qualified as a strike, but would be considering whether dismissal of the strike was warranted because defendant was not the type of defendant targeted by the three strikes law. (See People v. Wallace (2004) 33 Cal.4th 738, 747-748.)
We have considered and find unpersuasive defendant’s other arguments that circumstances surrounding the plea agreement indicate the People impliedly agreed that defendant was reserving the right to challenge the court’s authority to impose the lid term. Nor are we persuaded by his assertion that a certificate of probable cause is not required to the extent his challenge raises “purely legal arguments.” (See People v. Corban (2006) 138 Cal.App.4th 1111, 1116 [holding probable cause certificate not required where defendant argued on appeal that the imposition of a great bodily injury enhancement, the allegations of which she admitted in her plea, was unlawful because it was inapplicable to circumstances where child endangerment resulted in death, reasoning defendant’s challenge to the enhancement “addressed purely legal arguments about the applicability of an enhancement having nothing to do with the particular facts of the defendant’s case”]; but see People v. Arwood (1985) 165 Cal.App.3d 167, 172 [“[The defendant] argues the admitted felony is not a serious felony within the meaning of section 667. He therefore challenges the propriety of imposing section 667’s enhancement upon him by virtue of his admission. This constitutes a challenge to the validity of his plea insofar as it encompassed admission of a prior serious felony within the meaning of section 667. [The defendant’s] characterization of this challenge as one merely touching upon his sentencing does not change its substance and avoid the requirements of section 1237.5.”].) Nothing in Shelton admits to the distinction asserted by defendant between law-based and fact-based challenges to a court’s authority to impose an agreed-upon sentencing lid, and we therefore decline to accept the authority defendant offers to support this distinction. We further note that People v. Corban, supra, 138 Cal.App.4th 1111, on which defendant relies, does not appear to have involved a plea agreement with a specified maximum term or sentence lid, and therefore its analysis does not appear to govern here in any event.
Finally, we decline defendant’s request to construe his appeal as a petition for writ of habeas corpus. We are required to strictly apply the certificate requirements of section 1237.5. (People v. Mendez, supra, 19 Cal.4th at p. 1097 [holding that “section 1237.5 ... ha[s] been applied in a strict manner,” and condemning relaxed application of section 1237.5’s requirements despite argument that defendant denied relief on direct appeal will seek same relief by petitioning for a writ of habeas corpus]; People v. Panizzon (1996) 13 Cal.4th 68, 89, fn. 15 [“condemn[ing]” the practice of addressing the merits of contentions despite failure to comply with section 1237.5, because “the purposes behind section 1237.5 will remain vital only if appellate courts insist on compliance with its procedures”].)
DISPOSITION
The appeal is dismissed for failure to obtain a certificate of probable cause.
WE CONCUR: HARRIS, Acting P.J. KANE, J.