Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC063470A
McGuiness, P.J.
Appellant John Poland pleaded no contest to driving under the influence (DUI) (Veh. Code, § 23152, subd. (a)) and admitted a special allegation that he suffered a prior felony conviction for an alcohol-related Vehicle Code offense (§ 23550.5, subd. (a)(2)). On appeal, he contends the trial court erred by denying his preplea motion to strike the special allegation in light of the reduction of his prior conviction to a misdemeanor pursuant to Penal Code section 17, subdivision (b)(3), following the filing of the information in this case. Because Poland’s plea necessarily admitted all matters essential to the conviction, his contention is not cognizable on appeal. Accordingly, we dismiss the appeal.
All further statutory references are to the Vehicle Code unless otherwise specified.
Factual and Procedural Background
In a three-count information filed April 17, 2007, the San Mateo County District Attorney charged Poland with felony DUI (§ 23152, subd. (a)), driving with a blood alcohol level of 0.08 percent or more, a felony (id., subd. (b)), and with leaving the scene of an accident, a misdemeanor (§ 20002, subd. (c).) The district attorney alleged that Poland committed the charged offenses on January 6, 2007.
The first and second counts included a penalty allegation that the offenses occurred within 10 years of a designated alcohol-related Vehicle Code violation that was punished as a felony, permitting the offenses committed on January 6, 2007, to be charged as felonies. (§ 23550.5, subd. (a)(2).) More specifically, it was alleged that Poland had suffered a felony conviction for causing bodily injury while driving under the influence of alcohol (§ 23153, subd. (a)) on November 14, 1997, in the Superior Court for the City and County of San Francisco (San Francisco Superior Court). The information contained a further special allegation that the concentration of alcohol in Poland’s blood was 0.15 percent or more (§ 23578).
During the pendency of the litigation in the San Mateo County Superior Court, Poland made a motion in the San Francisco Superior Court for an order to reduce his November 14, 1997, felony conviction under section 23153, subdivision (a) from a felony to a misdemeanor pursuant to Penal Code section 17, subdivision (b). The San Francisco Superior Court granted Poland’s motion in light of his successful completion of probation, issuing an order on November 5, 2007, declaring that Poland’s 1997 conviction for violating section 23153, subdivision (a) was reduced to a misdemeanor.
Penal Code section 17, subdivision (b) provides in relevant part: “When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] . . . [¶] (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.”
Following the San Francisco court’s reduction of his prior conviction from a felony to a misdemeanor, Poland filed a motion in this case on November 20, 2007, seeking to dismiss the penalty allegations under section 23550.5, subdivision (a)(2). Poland argued that the pending charges for DUI (§ 23152, subd. (a)) and driving with a blood alcohol level of 0.08 percent or more (id., subd. (b)) could no longer be charged as felonies because his prior felony conviction, which served as the basis for enhancing the charges to felonies under section 23550.5, subdivision (a)(2), had been reduced to a misdemeanor. On December 13, 2007, the trial court denied the motion, stating: “I recognize the law is not clear on this issue; however, I am going to be governed by the language and argument of [People v] Marsh [(1982) 132 Cal.App.3d 809]in that a [Penal Code] section 17[, subd.] (b) reduction occurring at the commission of the second offense does not relate back to the commission of the second offense.” The court further noted it “hope[d] there is some appellate resolution of this matter soon . . . .”
Poland thereafter filed a petition for a writ of mandate and/or prohibition in this court, challenging the trial court’s denial of his motion to dismiss the Penal Code section 23550.5, subdivision (a)(2) penalty allegations. We summarily denied the petition on January 24, 2008.
On February 20, 2008, pursuant to a negotiated plea bargain, Poland pleaded no contest to count one, the DUI charge (§ 23152, subd. (a)), and he admitted the penalty allegation under section 23550.5, subdivision (a)(2) that he had suffered a prior, qualifying Vehicle Code violation that was punished as a felony. He further admitted the special allegation that his blood alcohol level was 0.15 percent or more at the time of the offense (§ 23578). The court described the charge as “a felony violation of [section] 23152[, subdivision] (a) of the Vehicle Code, which alleges also that this was within ten years of having suffered another felony under the same section, basically [section] 23152[, subdivision] (a) in San Francisco in 1997, which makes this a felony pursuant to [section] 23550.5[, subdivision] (a)(2) of the Vehicle Code . . . .” Defense counsel asked, “Your Honor, just for clarification, it’s a plea to [section] 23152[, subdivision] (a), correct, with a prior?” The court responded, “With a prior, right.” Defense counsel in turn said, “That’s correct.” The court continued, “The charge here is [section] 23512[, subdivision] (a), a felony by virtue of the prior,” and asked, “What plea are you entering, sir?” Poland responded, “No contest.” In exchange for his plea, the district attorney agreed to dismiss the remaining charges against Poland.
There is no indication in the record that as part of his plea bargain Poland was promised he could challenge on appeal the denial of his motion to strike the penalty allegation for a prior felony conviction (§ 23550.5, subd. (a)(2)). Nevertheless, it is apparent from the record that defense counsel was under the impression that Poland could pursue the issue on appeal notwithstanding his plea, because at the outset of the hearing on Poland’s change of plea, defense counsel stated: “[W]e’re going to proceed with the plea, and then we’ll appeal the status of the prior after that.”
At the sentencing hearing on May 20, 2008, the trial court suspended imposition of sentence and placed Poland on supervised probation for a period of three years. Defense counsel presented the sentencing court with a certificate of probable cause for signature, representing that the trial judge who had ruled on Poland’s motion to dismiss the section 23550.5 penalty allegation (who was different from the sentencing judge) had stated there was “no clear authority” on the issue and had expressed a desire that an appellate court would resolve the question. The sentencing judge signed the certificate of probable cause, stating that the comments of the judge who had ruled on the motion suggested it “was at least an arguable issue.”
Poland filed a timely notice of appeal on June 17, 2008, and attached the certificate of probable cause signed by the judge at the sentencing hearing.
Discussion
The sole contention raised by Poland on appeal is that his prior San Francisco conviction cannot have the legal effect of a felony for purposes of the penalty enhancement of section 23550.5, subdivision (a)(2), because that conviction was reduced to a misdemeanor under Penal Code section 17, subdivision (b) “for all purposes.” Thus, he argues that his conviction in this case must be reduced from a felony to a misdemeanor because the sole ground for charging the current offense as a felony—his prior felony conviction—no longer exists.
The law is clear that Poland’s current offense could not have been charged as a felony if his prior offense had been reduced to a misdemeanor before he committed the current offense. (See People v. Camarillo (2000) 84 Cal.App.4th 1386, 1389.) The narrow issue presented by Poland’s appeal is whether the reduction of a prior qualifying conviction from a felony to a misdemeanor made after the commission of the current offense can relate back to the time the current offense was committed and preclude treating that offense as a felony under section 23550.5, subdivision (a)(2).
The Attorney General does not address the merits of Poland’s appeal but instead contends the issue raised by Poland is not cognizable on appeal. The Attorney General argues that, notwithstanding the issuance by the trial court of a certificate of probable cause, the issue is not one that may be properly raised following a plea. The Attorney General therefore requests that the appeal be dismissed. For the reasons that follow, we agree with the Attorney General.
Following a plea of guilty or no contest, the issues that a defendant may raise on appeal are limited to (1) the denial of a motion to suppress evidence, and (2) grounds that arose after entry of the plea that do not affect its validity, unless the defendant secures a certificate of probable cause signed by the trial court. (See Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304(b); People v. Kaanehe (1977) 19 Cal.3d 1, 7-8.) Even when a defendant obtains a certificate of probable cause, he is limited to raising so-called “certificate” issues, which concern “reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.” (Pen. Code, § 1237.5, subd. (a); see People v. Mendez (1999) 19 Cal.4th 1084, 1088; People v. DeVaughn (1977) 18 Cal.3d 889, 895-896.)
A plea of guilty “admits all matters essential to the conviction.” (People v. DeVaughn, supra, 18 Cal.3d at p. 895.) “Other than search and seizure issues which are specifically made reviewable . . ., all errors arising prior to entry of a guilty plea are waived, except those which question the jurisdiction or legality of the proceedings resulting in the plea. [Citation.]” (People v. Kaanehe, supra, 19 Cal.3d at p. 9.) “The basis of this ‘general principle’ [citation] is the fact that a ‘plea of guilty [itself] constitutes a conviction’ [citations], indeed the ‘highest kind of conviction which the case admits’ [citations], and that a plea of nolo contendere is its equivalent [citation].” (People v. Mendez, supra, 19 Cal.4th at pp. 1094-1095.)
Thus, in People v. DeVaughn, our Supreme Court held that a claim the trial court had improperly denied a motion to suppress an extrajudicial statement allegedly made in violation of the defendant’s rights under Miranda v. Arizona (1966) 384 U.S. 436 was removed from consideration on appeal following the defendant’s guilty plea. (People v. DeVaughn, supra, 18 Cal.3d at p. 895.) The claim the statement was involuntarily or improperly induced did not raise a “ ‘constitutional, jurisdictional or other ground[] going to the legality of the proceedings’ resulting in the plea.” (Id. at p. 896, fn. omitted.) The court noted, however, that a “claim that the plea as distinguished from an extrajudicial statement was improperly induced would challenge the legality of the proceedings resulting in the plea and would thus be cognizable on appeal” following issuance of a certificate of probable cause. (Ibid.)
Here, Poland claims the trial court erred by denying his preplea motion to dismiss the penalty allegation under section 23550.5, subdivision (a)(2). The claimed error arose prior to entry of the plea and is therefore waived unless it “question[s] the jurisdiction or legality of the proceedings resulting in the plea. [Citation.]” (People v. Kaanehe, supra, 19 Cal.3d at p. 9.) It does not. Any error in the court’s preplea ruling did not go to the legality of the proceedings that led to the plea.
Poland’s claim is akin to that in People v. Pinon (1979) 96 Cal.App.3d 904. There, the defendant had pleaded guilty to possession of a firearm by a convicted felon. (Id. at p. 907.) On appeal, he contended “that the plea was invalid because the record does not reflect a factual basis for the plea and that his prior conviction was a misdemeanor, not a felony.” (Ibid.) The court in Pinon recognized the claim went “to the question of guilt or innocence” and that the issue had “ ‘been removed from consideration’ by the guilty plea. [Citation.]” (Id. at p. 910.) The appellate court reasoned the issues “sought to be raised do not attack the proceedings resulting in the plea. Rather, defendant’s contention that the prior conviction was a misdemeanor rather than a felony, and the related contention that counsel was incompetent, go solely and directly to the question whether he was in fact guilty of the charged offense. However, his plea of guilty ‘operated to remove such issues from consideration as a plea of guilty admits all matters essential to the conviction.’ [Citations.] Consequently, these issues are simply not cognizable on the present appeal, whether or not defendant obtained a certificate of probable cause.” (Ibid.)
In In re Troy Z. (1992) 3 Cal.4th 1170, 1180, the California Supreme Court found the court’s analysis in People v. Pinon persuasive, agreeing that a claim challenging the defendant’s “guilt or innocence” is not cognizable on appeal following a plea of guilty or no contest. “ ‘ “In short, a defendant ‘cannot admit the sufficiency of the evidence by pleading guilty [or nolo contendere] and then question the evidence by an appeal . . . .’ ” ’ [Citations.]” (Id. at p. 1181.)
On appeal, Poland’s claim boils down to whether there was a sufficient factual basis for the admission that permitted his current offense to be charged as a felony. Having admitted the truth of the penalty allegation, Poland cannot now challenge the support for the allegation on appeal.
It is immaterial that Poland in fact obtained a certificate of probable cause. “The issuance of a certificate of probable cause . . . 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.’ [Citations.]” (People v. DeVaughn, supra, 18 Cal.3d at p. 896.) This is true regardless of whether a precluded claim raises an issue of constitutional magnitude (such as the alleged Miranda violation in People v. DeVaughn)or if, as here, the trial court expressed an interest in appellate resolution of what it perceived as an unsettled issue. By entering his no contest plea, Poland removed the matter from appellate consideration.
Poland contends his claim is cognizable on appeal, arguing that “an appeal involving the inapplicability of an enhancement imposed as part of a plea agreement is authorized by law.” As support for his argument, he cites People v. Arwood (1985) 165 Cal.App.3d 167, People v. Breckenridge (1992) 5 Cal.App.4th 1096, disapproved on other grounds in In re Chavez (2003) 30 Cal.4th 643, 657, fn. 6, People v. Loera (1984) 159 Cal.App.3d 992, and People v. Corban (2006) 138 Cal.App.4th 1111. We are not persuaded.
An admission to the truth of a special allegation functions the same as a guilty or no contest plea to a criminal offense. It admits all matters essential to application of the enhancement. The cases relied upon by Poland do not state otherwise. Rather, they stand for the proposition that a defendant may challenge the legal applicability of an enhancement that is otherwise factually supported. Thus, for example, in People v. Loera, supra, 159 Cal.App.3d at pp. 994, 997, the defendant argued on appeal that a sentence enhancement for taking property with a value in excess of $25,000 (under former Penal Code, § 12022.6, subd. (a)) could not be used to enhance a conviction for receiving stolen property (Pen. Code, § 496). The defendant did not challenge the factual basis for the enhancement but rather argued the enhancement was inapplicable to a conviction for receiving stolen property, resulting in the imposition of an unlawful sentence. (People v. Loera, supra, 159 Cal.App.3d at pp. 997-998.) Likewise, in People v. Corban, the defendant did not dispute that the “enhancements in question fit the facts of her offense” but instead argued a “particular enhancement could not be used in her case.” (People v. Corban, supra, 138 Cal.App.4th at p. 1117.) If an enhancement that is otherwise factually supported does not apply to the underlying offense, the resulting judgment is legally invalid to the extent it imposes that enhancement. It is for this reason that such a claim is cognizable following a guilty or no contest plea.
Here, there is no legal question about the applicability of the section 23550.5, subdivision (a)(2) penalty enhancement to the underlying DUI offense in section 23152. What Poland challenges is the factual support for the penalty allegation, not its legal application.
Poland also relies upon People v. Jerome (1984) 160 Cal.App.3d 1087. The case is inapposite. There, the defendant contended his plea of guilty to oral copulation with a person under 14 years of age was fatally defective because the victim was actually 15 years old. (Id. at p. 1093.) The appellate court concluded it was “legally impossible” to commit the charged crime when the victim was 15, and it modified the judgment to reflect a conviction for the lesser included offense of oral copulation with a person under 18 years of age. (Id. at pp. 1094, 1097-1098.) At first blush, the case appears to support Poland’s position, if you accept his argument that it was legally impossible for him to be convicted of a felony based in part on a prior felony conviction, which was no longer considered a felony at the time of conviction. However, the facts in People v. Jerome do not bear out his position.
In People v. Jerome, the complaint expressly alleged the victim was 15 years old. (People v. Jerome, supra, 160 Cal.App.3d at p. 1093.) The Attorney General apparently conceded the victim was 15 years old at the time of the offense. “She was so described to the magistrate at the time of the plea, in the prosecutor’s statement of aggravation and in the probation report.” (Ibid.) Thus, the plea was in direct contradiction to the charge before the court and the facts admitted by the prosecutor. Under the circumstances, the plea was invalid. In this case, by contrast, Poland actually litigated—and lost—a motion addressing his theory that his prior conviction could not serve to enhance his current offense from a misdemeanor to a felony. After failing in his attempts to strike the allegation, he admitted its truth in his plea, with complete knowledge he was admitting what he had previously contested. He cannot claim his plea is invalid.
As a general matter, a defendant may not receive the benefits of a plea bargain and then attempt to improve the deal on appeal. (People v. Vera (2004) 122 Cal.App.4th 970, 983.) Yet that is precisely what Poland seeks to do here. He received a benefit from his plea bargain—the prosecutor agreed to dismiss two of the three charges against him. In exchange, he agreed to a conviction for felony DUI. Now, on appeal, he seeks to reduce the bargained-for conviction to a misdemeanor, asserting a theory opposed by the prosecutor and rejected by the trial court.
Poland asserts this court should entertain his appeal “in the interest of justice” where he exhausted all legal means to address the issue and there was an “understanding” the issue could be raised on appeal. If he wished to preserve the issue for appeal, he could have proceeded to trial before a judge or jury and, if convicted, pursued the matter in an appeal from the resulting judgment. It was his choice to plead no contest. Because he did so, the issue may not be raised on appeal. Further, there was no understanding among the parties that Poland could raise the issue on appeal. Although defense counsel was under the impression he could pursue an appeal on the issue, there was no promise to that effect made by the prosecutor or the court inducing Poland to plead no contest.
Even if there had been such a promise, the proper remedy would not be to entertain the claim on appeal but rather to vacate the plea on the ground it was “induced by misrepresentations of a fundamental nature.” (People v. DeVaughn, supra, 18 Cal.3d at p. 896.)
Disposition
The appeal is dismissed.
We concur: Siggins, J., Jenkins, J.