Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM024857.
BLEASE, Acting P. J.
“In Kellett [v. Superior Court (1966) 63 Cal.2d 822], the Supreme Court . . . concluded that in order to avoid needless harassment of the defendant and the waste of public funds [Penal Code] section 654 should be construed to prohibit successive prosecutions where the first prosecution results in acquittal or conviction and sentence, and the prosecution was or should have been aware of more than one offense in which the same act or course of conduct played a significant part. [Citation.] Consequently, ‘[failure] to unite all such offenses will result in a bar to subsequent prosecutions of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.’” (People v. Turner (1985) 171 Cal.App.3d 116, 123.)
In this case, defendant Thomsen moved to dismiss a single count of manufacture of methamphetamine on the ground that it constituted multiple prosecution in violation of Penal Code section 654 (hereafter section references are to this code), as that section was construed by Kellett. This was so, he argued, because in an earlier separate case he had pleaded no contest to being under the influence of methamphetamine and the manufacturing charge in the instant case arose from the same set of circumstances. The motion was denied and defendant pleaded no contest to the charge. He was then committed to the California Rehabilitation Center.
Penal Code section 654, subdivision (a) provides: “(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
On this appeal, defendant seeks to reassert his Kellett argument. However he has not obtained a certificate of probable cause for the appeal as required by section 1237.5, which governs the procedure for perfecting an appeal following a plea of guilty or no contest. Defendant argues that under the circumstances within which his Kellett motion was made he is exempt from section 1237.5’s certificate requirement. We reject his claim and shall dismiss the appeal.
FACTS RELATING TO DEFENDANT’S KELLETT MOTION
The facts are not in dispute. On December 28, 2005, acting on a tip that methamphetamine was being manufactured in a garage at a specified residence, officers from the Paradise Police Department went to that location and encountered Larri Lynn Kelly, who occupied the residence, and defendant, whom Kelly said was her cousin. Defendant was arrested for being under the influence of methamphetamine and a search of the garage disclosed that it was being used as a laboratory to manufacture methamphetamine. Defendant was booked on charges of being under the influence and manufacturing methamphetamine. The district attorney reviewed the police reports and, for lack of sufficient evidence, declined to file manufacturing charges.
However, on January 3, 2006, the district attorney filed a misdemeanor complaint charging defendant with being under the influence of methamphetamine. On January 4 defendant pleaded no contest to the charge, and on January 12 he was placed on three years’ probation.
On May 16, 2006, after receiving additional evidence, the district attorney filed a felony complaint charging defendant with manufacture of methamphetamine during the period July 1, 2005, to December 28, 2005. Defendant filed a motion to dismiss the complaint pursuant to Kellett, the motion was denied and he entered a negotiated plea to the charge.
DISCUSSION
When a defendant pleads guilty or no contest and thereafter seeks to appeal the validity of his plea, he must comply with section 1237.5’s requirement that he obtain a certificate of probable cause for the appeal based upon a declaration “showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.” (See People v. Ward (1967) 66 Cal.2d 571, 574 [section 1237.5 was intended to apply only to a situation in which a defendant claims that his plea of guilty was invalid].) “[A] defendant may not obtain review of certificate issues unless he has complied with section 1237.5 and [California Rules of Court,] rule 31(d), first paragraph.” (People v. Mendez (1999) 19 Cal.4th 1084, 1097.)
Section 1237.5 states:
Defendant claims that he is exempt from that section 1237.5’s certificate requirement for the following reasons:
“[Defendant] contends that he does not, in the present appeal, challenge the plea directly, but does so only in a derivative manner insofar as that plea violates [his] rights under Kellett; that is, rights derivative from, and based on, the earlier plea. Thus, [defendant’s] Kellett motion challenged the legality of the current proceedings which were subsequent to, and because of, the plea in Butte County case number SCR53462 (the under the influence case). [¶] There was no appeal to the plea in Butte County case number SCR53462. The Kellett motion could not have been made in case number SCR53462, since it only arose after the plea in the earlier case. However, the Kellett motion was based on the fact of the earlier plea. Penal Code section 1237, subdivision (b), provides that an appeal may be taken, ‘From any order made after judgment, affecting the substantial rights of the party.’ [¶] Since there was no active case pending against [defendant] at the time the complaint was filed in the current case (no. CM024857), there was therefore no other active case in which the Kellett motion could have been filed. However, under the express terms of section 1237, the appeal in the present case derives from the earlier case because, as will be further elucidated below, the denial of the Kellett motion was an order made after judgment in the earlier, first plea case.” (Italics are defendant’s.)
What defendant fails to appreciate is that while a Kellett motion refers to facts of a prior conviction, the motion itself relates solely to the case in which the motion is made. The Kellett motion has no bearing whatsoever on the prior case and only challenges the “power of the state to try him despite his guilt” in the case in which the motion has been brought. (People v. Turner, supra, 171 Cal.App.4th at p. 126.) Consequently, when, on appeal, a defendant challenges a trial court’s denial of his Kellett motion and thereafter pleads guilty or no contest to the charge or charges, he is saying that because the state was without power to try him, i.e., to hale him into court, it likewise was without power to accept his guilty or no contest plea. And that is a challenge to the constitutional validity of the plea, thus requiring the obtaining of a certificate of probable cause to obtain review.
Defendant also claims that his Kellett motion is reviewable pursuant to section 1237, subdivision (b) because it constitutes a motion made after the judgment in the under the influence case. Again, defendant misunderstands the statute. Section 1237, subdivision (b) permits a defendant to appeal from “any order made after judgment, affecting the substantial rights of the party.” The order and judgment in section 1237, subdivision (b) obviously refer to the same case and not, as here, a subsequent separate case. Consequently, section 1237, subdivision (b) is of no aid to defendant.
Finally, defendant contends that while Blackledge v. Perry (1974) 417 U.S. 21 [40 L.Ed.2d 628] presents “a different legal and factual scenario to the present case, the Blackledge holding applies to the question in the present case of whether [he] is required to first obtain a certificate of probable cause before he is permitted to appeal the denial of his Kellett motion.” Defendant overstates the holding of Blackledge.
In Blackledge, the defendant had been convicted of misdemeanor assault and was sentenced to a term consecutive to that which he was then serving in a North Carolina prison. (Blackledge v. Perry, supra, 417 U.S. at p. 22 [at p. 631].) North Carolina law permitted a defendant convicted of a misdemeanor to obtain a trial de novo in the superior court if he appealed, and defendant did so. (Id. at pp. 22-23 [at p. 631].) The prosecutor responded by obtaining an indictment for felony assault based upon the same conduct which had been the basis for the misdemeanor conviction. (Id. at p. 23 [at p. 631].) The defendant pled guilty to the felony and was sentenced to a longer term. (Ibid.)
The defendant sought habeas corpus relief in the federal court, and the case eventually made it to the Supreme Court. (Blackledge v. Perry, supra, 417 U.S. at pp. 23-24 [at pp. 631-632].) The defendant claimed, inter alia, that the felony indictment violated due process because it was obtained as a penalty for his exercising his statutory right to appeal. (Id. at p. 25 [at p. 633].) The Supreme Court agreed and affirmed the issuance of a writ of habeas corpus. (Id. at pp. 28-29 [at pp. 634-635].)
Blackledge says nothing with regard to the issue herein, namely, the manner of perfecting an appeal following a guilty or no contest plea. Consequently, Blackledge is of no aid to defendant.
DISPOSITION
The appeal is dismissed.
We concur: NICHOLSON, J., HULL, J.
“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 cause for such appeal with the clerk of the court.”