P. v. Boardman

Filed 9/19/06 P. v. Boardman CA2/6

Received for posting 10/26/06

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Andrew S. Boardman appeals from the judgment entered following his no contest pleas to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and petty theft with a prior theft conviction. (Pen. Code, § 666.)^[1] Appellant admitted that he had served two prior separate prison terms (§ 667.5, subd. (b)) and had been previously convicted of a serious felony within the meaning of California's "Three Strikes" law. (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) The pleas were not pursuant to a negotiated settlement. There was no charge or sentence bargain.

The trial court sentenced appellant to prison for four years. For each offense, the court selected the middle term of two years and then doubled the term because of the strike. The sentences were ordered to run concurrently. The court struck the two prior prison terms.

The strike was a prior conviction of battery with serious bodily injury in violation of section 243, subdivision (d). Appellant contends that, as a matter of law, a conviction of this offense does not qualify as a strike. Therefore, he argues, the doubling of the middle terms was unauthorized.

We dismiss the appeal because appellant failed to obtain a certificate of probable cause.Discussion

"[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 post-plea 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.]" (Id., at p. 1096.) The requirements of section 1237.5 are incorporated in rule 30(b) of the California Rules of Court.^[2]

" 'The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas. [Citations.] The objective is to promote judicial economy "by screening out wholly frivolous guilty [and nolo contendere] plea appeals before time and money is spent preparing the record and the briefs for consideration by the reviewing court." [Citations.]' " (People v. Buttram (2003) 30 Cal.4th 773, 781.)

Appellant concedes that, "[b]ecause trial counsel did not obtain a certificate of probable cause under section 1237.5, appellant cannot challenge the validity of his admission to the 'strike' prior on appeal." Nevertheless, he contends that a certificate of probable cause is unnecessary to challenge his sentence because it was unauthorized: "Regardless of whether a defendant admits he suffered a prior 'strike,' if in fact he or she did not, a court does not have jurisdiction to double defendant's sentence . . . ."

"The following principles guide our analysis. In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: 'the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.' [Citation.] Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5. [Citation.]" (People v. Panizzon (1996) 13 Cal.4th 68, 76.)

The Sixth District Court of Appeal considered a similar issue in People v. Arwood (1985) 165 Cal.App.3d 167. Pursuant to a negotiated disposition, the defendant in Arwood pleaded no contest to forcible rape and admitted a prior serious felony within the meaning of section 667. The prior serious felony was a conviction of assault with a deadly weapon involving personal use of a deadly weapon. The defendant's sentence included a five-year enhancement for the serious felony. He challenged "the imposition of the five-year enhancement, arguing that his prior conviction . . . is not a 'serious felony' within the meaning of section 667 and should therefore be stricken." (Id., at p. 171.)

The Sixth District concluded that, because the defendant had failed to obtain a certificate of probable cause, his appeal was barred pursuant to section 1237.5. The appellate court rejected appellant's argument that "his challenge goes only to the validity of the sentence imposed and that the provisions of section 1237.5 are inapplicable to him . . . because the judicial act of sentencing occurred after entry of his nolo contendere plea." (People v. Arwood, supra, 165 Cal.App.3d at p. 172.) This argument, the court declared, "ignores the fact that imposition of the enhancement related back to his admission of the prior felony conviction, which occurred at the time he entered the plea." (Ibid.)

The Sixth District further reasoned as follows: "[A]ppellant 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. Appellant'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. Thus appellant's failure to obtain a certificate of probable cause effectively bars his challenge on appeal to the validity of the enhancement resulting from his admission of the prior felony." (People v. Arwood, supra, 165 Cal.App.3d at p. 172.)

Arwood conflicts with People v. Loera (1984) 159 Cal.App.3d 992, decided by Division Four of the First District Court of Appeal. In Loera the defendant pleaded guilty to receiving stolen property. The defendant admitted a section 12022.6 enhancement as to the value of the stolen property. The enhancement added one year to his prison sentence. On appeal the defendant contended that a sentence for receiving stolen property cannot be enhanced by a section 12022.6 allegation. The appellate court concluded that the defendant's failure to obtain a certificate of probable cause did not bar him from challenging his sentence: "It is apparent from defendant's brief . . . that he is in effect contending that the sentence imposed was unlawful. The imposition of a sentence which is unlawful, and consequently void, is a jurisdictional defect subject to correction whenever it comes to the attention of either a trial court or a reviewing court. [Citations.] We therefore conclude that defendant is not precluded from pressing his contention by virtue of . . . his failure to secure a certificate of probable cause ordinarily required by section 1237.5. [Citations.]" (Id., at pp. 997-998.)

In People v. Jones (1995) 33 Cal.App.4th 1087, 1093, the Sixth District recognized that, "faced with an issue similar" to the issue in Arwood, the Loera court had come "to a different result." The Sixth District disagreed with Loera and refused to follow it. (Ibid.)

In People v. Corban (2006) 138 Cal.App.4th 1111, Division One of the First District Court of Appeal relied on Loera in deciding that a certificate of probable cause was unnecessary. In Corban the defendant pleaded no contest to involuntary manslaughter and two counts of felony child endangerment. The defendant admitted that she had personally inflicted great bodily injury on a child within the meaning of section 12022.7, subdivision (d). The enhancement added four years to her prison sentence. On appeal the defendant contended "that she could not lawfully be charged with a section 12022.7, subdivision (d) great bodily injury enhancement because a more specific enhancement, the one provided in section 12022.95, applies in cases like this where the child endangerment results in death." (Id., at p. 1114.)

The Corban court stated that Loera was distinguishable from Arwood "on the ground that Loera addressed purely legal arguments about the applicability of an enhancement having nothing to with the particular facts of the defendant's case. [Citation.] In contrast, the issues in Arwood . . . , as they related to the plea, were at least partially factual: whether the defendant had in fact committed a prior serious felony . . . ." (People v. Corban, supra, 138 Cal.App.4th at pp. 1116-1117.) The Corban court reasoned: "Here, as in Loera, defendant raises a purely legal argument--that a particular enhancement could not be used in her case; although the People suggest otherwise, she is not disputing that the enhancements in question fit the facts of her offense. Defendant's reply brief concedes that '[s]he does not deny responsibility for having inflicted great bodily harm but only seeks to properly measure her liability for having done so.' In these circumstances, the challenge is in substance more to the propriety or legality of the sentence than the plea, and no certificate of probable cause was required." (Id., at p. 1117.)

We disagree with the Corban court's conclusion that Loera is distinguishable from Arwood because the issues relating to the plea in Arwood were "at least partially factual." (People v. Corban, supra, 138 Cal.App.4th at p. 1117.) The issues in Arwood were twofold, and they both involved matters of statutory construction. The first issue was whether subdivision (c)(23) of section 1192.3 should be interpreted as encompassing the felony offense of assault with a deadly weapon. (People v. Arwood, supra, 165 Cal.App.3d at p. 173.) The second issue was whether "the five-year enhancement must be stricken because [the defendant] did not suffer a personal use enhancement under section 12022, subdivision (b) in connection with the admitted prior felony conviction of assault with a deadly weapon." (Id., at pp. 173-174.) Both of these issues are purely legal.

We find the reasoning of Loera unpersuasive and decline to follow it. The Loera court misconstrued the "unauthorized sentence" principle. The principle "constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal. [Citations.] The 'unauthorized sentence' principle also has been invoked to determine whether claims previously rejected or never raised are procedurally barred on habeas corpus. [Citations.]" (People v. Scott (1994) 9 Cal.4th 331, 354.)^[3] Where an appeal is barred by section 1237.5, the principle does not permit a defendant to circumvent the statutory bar by claiming that his sentence is unauthorized.

We find the reasoning of Arwood persuasive and applicable to the instant case. Appellant's plea included an admission of the strike. This admission, therefore, was an integral part of the plea. Although appellant claims that he is challenging only the sentence imposed for the strike, that challenge is based on the invalidity of his admission of the strike. If the admission were valid, the sentence would not be unauthorized. "Since [appellant's] challenge attacks an integral part of the plea, it is, in substance, a challenge to the validity of the plea, which requires compliance with the probable cause certificate requirements of section 1237.5 and rule 31(d) [now 30(b)]." (People v. Panizzon, supra, 13 Cal.4th at p. 73.) "While a trial court's error in making certain decisions after a plea may give rise to challenges that do not require compliance with section 1237.5, all the trial court did here was to sentence defendant in accordance with the previously entered plea." (Id., at p. 78.)

Accordingly, the appeal must be dismissed. "[T]he purposes behind section 1237.5 will remain vital only if appellate courts insist on compliance with its procedures. [Citation.]" (People v. Panizzon, supra, 13 Cal.4th at p. 90, fn. 15.)

Disposition

The appeal is dismissed.

NOT TO BE PUBLISHED.

YEGAN, Acting P.J.

COFFEE, J.

PERREN, J.

Kathryne Ann Stoltz, Judge

Superior Court County of Los Angeles

______________________________

Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E.Winters, Supervising Deputy Attorney General, Tash G. Timbadia, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] All further statutory references are to the Penal Code.

^[2] All references to rules are to the California Rules of Court. Rule 30(b) provides: "(1) Except as provided in (4), to appeal from a superior court judgment after a plea of guilty or nolo contendere or after an admission of probation violation, the defendant must file in that superior court--in addition to the notice of appeal required by (a)--the statement required by Penal Code section 1237.5 for issuance of a certificate of probable cause. (2) Within 20 days after the defendant files a statement under (1), the superior court must sign and file either a certificate of probable cause or an order denying the certificate. (3) If the defendant does not file the statement required by (1) or if the superior court denies a certificate of probable cause, the superior court clerk must mark the notice of appeal "Inoperative," notify the defendant, and send a copy of the marked notice of appeal to the district appellate project. (4) The defendant need not comply with (1) if the notice of appeal states that the appeal is based on: (A) the denial of a motion to suppress evidence under Penal Code section 1538.5, or (B) grounds that arose after entry of the plea and do not affect the plea's validity. (5) If the defendant's notice of appeal contains a statement under (4), the reviewing court will not consider any issue affecting the validity of the plea unless the defendant also complies with (1)."

^[3] See also People v. Panizzon, supra, 13 Cal.4th at p. 88: "Appellate courts have relied upon the [unauthorized sentence] principle . . . in allowing habeas corpus review of a claim or sentencing error amounting to an excess of jurisdiction when a defendant has delayed in raising the issue [citation] and in holding that an unauthorized sentence is no bar to the imposition of a proper, even if more severe, judgment thereafter [citations]."