Filed 5/14/18 P. v. Collimore CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL ALAN COLLIMORE,

Defendant and Appellant.
D072805



(Super. Ct. No. SCN340013)

APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Appeal dismissed.

James W. Wessel for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Michael A. Collimore pleaded guilty to one count of committing a lewd act upon a child 14 or 15 years of age by a perpetrator who is at least 10 years older than the victim (Pen. Code, § 288, subd. (c)(1)) and admitted the enhancement allegation that he committed the lewd acts with a minor for money (§ 675). Prior to the guilty plea, in response to the parties' cross-motions, the court ruled that Collimore was precluded from presenting a mistake of fact defense based on his belief as to the victim's age. After pleading guilty and being sentenced, the trial court granted Collimore's request for a certificate of probable cause, and Collimore appealed from the judgment.
In this appeal Collimore challenges the trial court's ruling disallowing the mistake of fact defense. However, by his guilty plea, Collimore waived appellate review of this issue. Accordingly, we will dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In late 2014, Collimore contacted 15-year-old Jane Doe through a website where she had posted an advertisement in which she offered to engage in sexual conduct for money. Twice Collimore picked up Jane Doe at a gas station, took her to his apartment, engaged in sex with her, paid her money, gave her marijuana, and returned her to the gas station.
Collimore's defense was that he mistakenly believed Jane Doe was 19 years old. In pretrial proceedings, the parties filed cross-motions in limine as to whether, as a matter of law, Collimore was entitled to present this defense. Granting the People's motion and denying Collimore's motion, the court ruled that Collimore was not entitled to present the proposed mistake of age defense.
Collimore then filed a change of plea form, admitting both (1) guilt to one count of committing a lewd act upon a child 14 or 15 years of age by a perpetrator who is at least 10 years older than the victim, and (2) the enhancement allegation that he committed the lewd act with a minor for money. The change of plea form reflects that, in consideration for Collimore's guilty plea, the prosecutor agreed to dismiss the remaining counts and enhancement allegations, and "all parties and court agrees that the defendant retains all appellate rights on motion in limine heard by court." (Sic; some capitalization omitted.)
At a hearing in July 2017, the court sentenced Collimore to three years of formal probation.
The trial court granted Collimore's request for a certificate of probable cause (§ 1237.5), and Collimore timely appeal from the judgment.
On appeal, the parties fully briefed the issue of whether the mistake of age defense should have been available to Collimore. In his opening brief, Collimore contends that he is entitled to appeal from the final judgment under section 1237, subdivision (a), pursuant to which a defendant may appeal, subject to specified exceptions, "from a final judgment of conviction." In their brief, the People did not mention appellate jurisdiction.
The court requested, and received, from both parties supplemental briefing as to whether Collimore's appeal—in which the only issue Collimore raises is his entitlement to assert a specified defense—is authorized following his guilty plea. That is because: "Issues cognizable on an appeal following a guilty plea are limited to issues based on 'reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings' resulting in the plea." (DeVaughn, supra, 18 Cal.3d at p. 895; accord, People v. Hoffard (1995) 10 Cal.4th 1170, 1178 (Hoffard).)
DISCUSSION
As we explain, Collimore's guilty plea severely limits the issues that Collimore may present in this appeal. (See People v. Johnson (2009) 47 Cal.4th 668, 677.)
Because a guilty plea "admits every element of the crime and constitutes a conviction . . . , issues going to the determination of guilt or innocence are not cognizable on appeal . . . ." (Hoffard, supra, 10 Cal.4th at pp. 1177-1178; accord, In re Chavez (2003) 30 Cal.4th 643, 649 (Chavez).) Thus, since a guilty plea " ' "concedes that the prosecution possesses legally admissible evidence sufficient to prove defendant's guilt beyond a reasonable doubt" ' " (People v. Thurman (2007) 157 Cal.App.4th 36, 43), the plea waives any " 'irregularity in the proceedings' " that would not, as a matter of law, preclude all subsequent proceedings to establish guilt (People v. Robinson (1997) 56 Cal.App.4th 363, 369 (Robinson)).
Accordingly, after a guilty plea, the range of cognizable issues on appeal is "limited to issues going to the jurisdiction of the court or the legality of the proceedings, including the constitutional validity of the plea." (Hoffard, supra, 10 Cal.4th at p. 1178; Chavez, supra, 30 Cal.4th at p. 649; DeVaughn, supra, 18 Cal.3d at pp. 895-896.) Very simply, a defendant who pleads guilty " 'thereafter can raise only those questions which go to the power of the state to try him despite his guilt.' " (Robinson, supra, 56 Cal.App.4th at p. 369, italics added.)
To determine whether an issue is appealable following a plea, we examine " 'the substance of the appeal: "the crucial issue is what the defendant is challenging . . . ." ' " (People v. Buttram (2003) 30 Cal.4th 773, 781; see People v. Cuevas (2008) 44 Cal.4th 374, 381.) Here, Collimore contends that he was improperly denied the right to assert a specific—i.e., mistake of fact—affirmative defense to the People's charges. However, " '[a] guilty plea is more than an admission of guilt; it is also a waiver of affirmative defenses.' " (People v. McNabb (1991) 228 Cal.App.3d 462, 471, italics added (McNabb) [defendant claimed he was working as an informant]; accord, People v. Bonwit (1985) 173 Cal.App.3d 828, 832 (Bonwit) [defendant claimed entrapment].)
Collimore's compliance with section 1237.5's certification requirement is irrelevant, because "issuance of a certificate of probable cause pursuant to section 1237.5 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.' " (DeVaughn, supra, 18 Cal.3d at p. 896.) Stated differently, merely "filing a certificate cannot expand the scope of review to include a noncognizable issue." (Hoffard, supra, 10 Cal.4th at p. 1178; accord, People v. Hunter (2002) 100 Cal.App.4th 37, 41-42 [" ' "Obtaining a certificate of probable cause . . . does not make cognizable those issues which have been waived by a plea of guilty." ' "].)
Similarly, the parties' and court's agreement that, despite the plea, Collimore retained appellate rights as to the certified issue does not affect our analysis. "The right to appeal is statutory only, and a party may not appeal a trial court's judgment, order or ruling unless such is expressly made appealable by statute." (People v. Loper (2015) 60 Cal.4th 1155, 1159.) Although section 1237 allows for an appeal from a final judgment, section 1237.5 limits appeals from judgments following guilty pleas to those in which the trial court issues a certificate of probable cause. As we just explained, however, the existence of a section 1237.5 certificate cannot expand the scope of review following a guilty plea (Hoffard, supra, 10 Cal.4th at p. 1178); and, by his guilty plea, Collimore waived all affirmative defenses (McNabb, supra, 228 Cal.App.3d at p. 471; Bonwit, supra, 173 Cal.App.3d at p. 832.) Given these authorities, there is no statutory right to appeal the issue Collimore raises here.
For the foregoing reasons, by his plea of guilty, Collimore waived any right he may have had to challenge the trial court's ruling that he was precluded from presenting a mistake of fact affirmative defense.
DISPOSITION
The appeal is dismissed.


IRION, J.

WE CONCUR:




HALLER, Acting P. J.




AARON, J.