Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR219645
Reardon, P.J.
In 2005, appellant Santonio Patrick Reese—then almost 18 years old—pled nolo contendere to felony charges of willful cruelty to a child and being an accessory to a crime. He was placed on four years’ probation. (Pen. Code, §§ 32, 273a, subd. (a).) The following year, Reese admitted that he had violated certain conditions of the terms of his probation. After the trial court denied his request to remand the case to juvenile court for disposition, he was sentenced to four years eight months in state prison. Reese appeals, contending that his sentence should be reversed and his case remanded to the trial court for a new sentencing hearing because statute law required that he be sentenced as a juvenile rather than an adult. (See § 1170.17.) The People counter that Reese’s appeal is improper, because he failed to obtain a certificate of probable cause for the appeal from the trial court and his challenge goes to the validity of his plea of nolo contendere in criminal proceedings, not juvenile court. We agree that we must dismiss the appeal.
All statutory references are to the Penal Code.
I. FACTS
In November 2004, appellant Santonio Patrick Reese and a companion were charged by felony complaint with having committed rape in concert, rape by use of drugs, and rape of an unconscious person in a single incident in October 2004. (See §§ 261, subd. (a)(3), (4), 264.1.) At the time of the charged crimes, Reese was almost 17 and one-half years old. In March 2005, a preliminary examination was conducted. The magistrate determined that there was sufficient cause to try Reese on these charges. An information was filed later that month alleging the same three charges against both defendants. In April, Reese pled not guilty to these charges.
In May 2005—three days before his 18th birthday—Reese pled nolo contendere to felony charges of willful cruelty to a child and being an accessory to a crime. (§§ 32, 273a, subd. (a).) The trial court convicted him of these two charges to which he had pled and dismissed the other three charges pending against him. In October 2005, the probation department recommended that a six-year state prison sentence be imposed and suspended, so that probation could be granted. In early November 2005, Reese’s companion was tried for charges stemming from the October 2004 incident and Reese testified about the incident. Later that month, at Reese’s own sentencing hearing, the trial court suspended imposition of a state prison sentence and placed him on probation for four years.
On repeated occasions in the winter of 2006, Reese tested positive for marijuana. In April 2006, a notice of violation was filed, alleging that he had tested positive for drugs and had failed to begin sex offender counseling as required by the terms of his probation. His probation was summarily revoked and a bench warrant was issued for his arrest. In June 2006, Reese was arrested on this outstanding warrant and jailed.
In August 2006, Reese admitted that he had violated the terms of his probation by having positive drug tests and by failing to attend sex offender treatment classes. On the basis of these admissions, the trial court found that Reese had violated the terms of his probation. The grant of probation was revoked and Reese was referred to the Department of Corrections for a diagnostic evaluation. (See § 1203.03.) In November 2006, the Department of Corrections recommended that Reese be committed to state prison.
In December 2006, Reese moved to remand his case to juvenile court for disposition, rather than having him sentenced as an adult in criminal court. He reasoned that because he had been 17 years old at the time of the underlying offense and was being sentenced for an offense that would not have permitted direct filing in criminal court, the matter should be transferred to the juvenile court for a fitness hearing. (See §§ 1170.17, 1170.19.) The People opposed this request and in January 2007, the trial court denied it. In March 2007, Reese was sentenced to a total term of four years eight months in state prison—a midterm of four years for willful cruelty to a child and a one-third, consecutive term of eight months for being an accessory. (See §§ 32, 273a, subd. (a).) When Reese filed his notice of appeal, he requested a certificate of probable cause, arguing that he had never specifically waived his right to have his case remanded to the juvenile court. The trial court denied this request. (See § 1237.5.)
II. CERTIFICATE OF PROBABLE CAUSE
Reese contends that his sentence should be reversed and his case remanded to the trial court for a new sentencing hearing, arguing that the law requires that he be sentenced as a juvenile instead of an adult. (See § 1170.17.) The People assert that he cannot raise this issue on appeal, for several reasons. We need only consider one of them—Reese’s failure to obtain a certificate of probable cause from the trial court allowing him to challenge his nolo contendere plea.
No appeal may be taken by a defendant from a judgment of conviction after a nolo contendere plea, or after a revocation of probation following the admission of a violation unless the defendant seeks and obtains a certificate of probable cause for the appeal from the trial court showing reasonable constitutional, jurisdictional or other grounds going to the legality of the proceedings. (§ 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1095.) After being sentenced to state prison and filing this appeal, Reese sought a certificate of probable cause, but the trial court denied his request.
This provision appears to apply to Reese twice, as he both pled nolo contendere in the proceeding and later had his grant of probation revoked after admitting an alleged violation of the terms of that grant of probation. (See § 1237.5.) However, we address the application of this provision only to the judgment resulting from the nolo contendere plea.
Despite this lack, Reese now argues that a certificate of probable cause is not required because he does not challenge the validity of his nolo contendere plea and because the ground for appeal arose after the entry of that plea. He contends that he seeks only to be properly sentenced pursuant to the plea agreement. (See Cal. Rules of Court, rule 8.304(b)(4)(B).) For their part, the People assert that Reese’s appeal does, in fact, challenge the validity of his plea. Thus, they reason that the appeal should be dismissed for failure to obtain a certificate of probable cause.
We find that the challenge that Reese attempts to raise on appeal is one that goes to the validity of the underlying nolo contendere plea. His May 2005 plea agreement was premised on his being sentenced as an adult, not a juvenile. Reese entered his nolo contendere plea in the criminal department of superior court, not in juvenile court. He acknowledged that he could be punished for as long as six years eight months. He stated that he had been promised that initially, he would not be sentenced to state prison but would be granted probation. He acknowledged that he understood that if he was sentenced to state prison, he could be subject to parole supervision on release from prison. The terms of his grant of probation included conditions such as serving a county jail sentence and paying fines and fees required of adult offenders. Reese stated that he understood and agreed to these terms of probation. On the basis of his nolo contendere plea, he was found guilty of the two charges. Consistent with the terms of the plea agreement, judgment and imposition of sentence were suspended and he was placed on probation. There was no discussion of any juvenile court disposition in Reese’s case until December 2006, after the diagnostic study recommended that he be sentenced to state prison.
By claiming that he was entitled to be remanded to the juvenile court for a fitness hearing before being sentenced as an adult, Reese necessarily challenges the validity of the nolo contendere plea that he had earlier entered which anticipated that he would be treated as an adult rather than a juvenile offender. A certificate of probable cause was required as a procedural prerequisite to such an appeal. (See § 1237.5.) Reese did not obtain a certificate of probable cause. Thus, we must dismiss this appeal.
The appeal is dismissed.
We concur: Sepulveda, J., Rivera, J.