P. v. Mack

Filed 9/17/08 P. v. Mack CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Richard G. Berry, Judge.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Steven Austin Mack (defendant) was charged by criminal complaint filed on October 11, 2007, with having been in possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)) on or about October 9, 2007, and with possession of drug paraphernalia (id.,  11364) on or about the same date. Along with the criminal complaint, the Kern County District Attorneys Office filed a statement of eligibility noting that defendant was eligible for both Proposition 36 probation (Pen. Code,  1210.1, subd. (a))^[1]and drug diversion ( 1000).^[2] Defendant was arraigned and entered a not guilty plea. His case was calendared for prepreliminary hearing to occur on October 24, 2007.

No resolution of defendants case was recorded at the prepreliminary hearing on October 24, 2007. The record does include, however, a form entitled Advisement of Rights, Waiver, and Plea Form For Felonies (hereafter waiver of rights form) signed by defendant and dated October 24, 2007. That form is ambiguous. It is filled out in such a way as to indicate that defendant was changing his plea in return for the grant of deferred entry of judgment pursuant to section 1000. The form also, however, is filled out in such a way as would be required if the defendant was to be granted felony probation or Proposition 36 probation. The appropriate lines for all three alternatives, that is, are initialed.

On October 25, 2007, the day for preliminary examination, the prosecution filed a written statement indicating that defendant was not, after all, eligible for deferred entry of judgment because he has been violated on probation case BM 710810a for failing to report to commitment (9-28-07 per CJIS).

The reporters transcript for October 25, 2007, commences with the following exchange:

The Court: People versus Steve Mack. Can we do something with this case?

[Defense Counsel]: Yes, Your Honor. I have points and authorities since I know Im not going to be heard on the record for the Courts file.

The Court: You can file it if you wish. [] The PC 1000 is not going to happen.

[Defense Counsel]: I understand that. Hell take Prop 36.

The Court: He will.

[Defense Counsel]: But I just want to submit this for the record.

The Court: Sure.

[Defense Counsel]: Your indication was clear so

The Court: I dont claim that Im omnipotent or anything else.

[Prosecutor]: He just needs to sign the terms. []  []

The Court: Mr. Mack, did you fully understand the paper that you looked at sir?

[Defendant]: Yes, sir.

The Court: And did you understand the waiver advisement of rights and the waiver, sir?

[Defendant]: Yes, sir.

The Court: And you understand the purpose of filling this out was that you are going to be changing your plea; right?

[Defendant]: Yes, sir.

The Court: How do you plead to violating Section 11377 (a) of the Health and Safety Code, sir?

[Defendant]: No contest. []  []

The Court: Counsel joins?

[Defense Counsel]: Counsel joins with regard to the plea.

The Court: Thank you. Go into the Prop 36 program; right, sir?

[Defendant]: Yes.

Thereafter, the trial court dismissed count 2, which charged possession of paraphernalia.

DISCUSSION

Defendant contends in this appeal that the trial court erred in denying him the opportunity to participate in a deferred entry of judgment program pursuant to section 1000. The issue for purposes of section 1000 is whether subdivision (a)(4) of section 1000 applied to render defendant ineligible. That subdivision states the following precondition to eligibility: The defendants record does not indicate that probation or parole has ever been revoked without thereafter being completed. ( 1000, subd. (a)(4).) It appears from the record that the prosecution and trial court agreed that this provision applied to defendant because he was on misdemeanor probation in another case, his probation had been revoked because of a failure to report to commitment on September 28, 2007, and his probation had not (at least yet) been reinstated.

We will not address this issue, however, because defendant has failed to comply with the requirement of section 1237.5.

Pursuant to section 1237.5, and with only two exceptions, a defendant who pled either guilty or no contest may not appeal the conviction unless the defendant obtained a certificate of probable cause. It is undisputed here that defendant neither obtained nor even applied for a certificate of probable cause. Thus, in this appeal, he may argue only the issues left to him by the two exceptions to the certificate requirementto wit, (1) issues arising from the denial of a section 1538.5 motion to suppress, and (2) issues relative to proceedings held after the change of plea to determine the degree of the crime and the penalty to be imposed. (People v. Panizzon (1996) 13 Cal.4th 68, 74.)

Defendant argues that he is not subject to the requirement of section 1237.5 because he is not seeking to withdraw his plea, is not attacking the validity of his plea, and is attacking only the sentence imposed.

In Panizzon, however, the court held that a challenge to a negotiated sentence is a challenge to the validity of the plea and must, therefore, be preceded by the receipt of a certificate of probable cause. (People v. Panizzon, supra, 13 Cal.4th at p. 79.)

That defendant contends he is presenting only a sentencing issue does not make it so. The record here is quite clear. The reporters transcript reflects that defendant entered his no contest plea with full knowledge that he would not be allowed to participate in deferred entry of judgment but would, instead, be granted Proposition 36 probation.

Citing People v. Delles (1968) 69 Cal.2d 906 and People v. Kaanehe (1977) 19 Cal.3d 1, defendant contends his attack is on his sentence and not his plea because the sentence was imposed in contravention of his plea bargain. In support of this proposition, however, all that defendant offers is the ambiguous waiver of rights form he executed and signed on October 24, 2007.

We reject the proposition that this ambiguous form can overcome the express intention and words used by the court, defendant and counsel, as reflected in the reporters transcript. (People v. Malabag (1997) 51 Cal.App.4th 1419, 1422 [When a clerks transcript conflicts with a reporters transcript, the question of which of the two controls is determined by consideration of the circumstances of each case].) Whatever the prosecution and defendant may have discussed prior to his change of plea, he knew when he entered the plea what the sentence was to be.

We hold, therefore, that defendants appeal is subject to the requirement of a certificate of probable cause.

Disposition

Because defendant failed to comply with section 1237.5, his appeal is dismissed.

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^*Before Gomes, Acting P.J., Dawson, J. and Hill, J.

Retired judge of the Kern Superior Court, assigned by the Chief Justice pursuant article VI, section 21 of the California Constitution.

^[1]Further statutory references are to the Penal Code unless otherwise indicated.

^[2]The district attorneys form is out of date. Section 1000 no longer provides for preplea diversion of the criminal proceedings; it provides for deferred entry of judgment after plea. (See Stats. 1996, ch. 1132,  2.)