Filed 12/20/18 P. v. Sanchez-Herrera CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant Roberto Sanchez-Herrera appeals from the sentence imposed on him[1] after he pleaded no contest to a violation of Health and Safety Code section 11358, subdivision (d) for marijuana cultivation with environmental violations as part of a negotiated disposition of his case. Defendant contends the $8,000 environmental penalty that the court imposed, which was within the range of the penalty he agreed the court could impose, violates the ex post facto clauses of the federal and state Constitutions. (U.S. Const., art. I, § 9; Cal. Const., art. I, § 9.) We conclude defendant’s appeal must be dismissed because he did not obtain a certificate of probable cause under Penal Code section 1237.5, which is a prerequisite to his appeal because he challenges an integral part of the plea agreement.

I.

The Plea Agreement and Sentence

The plea agreement imposed a number of burdens on defendant and conferred a number of benefits. He agreed to plead no contest to the felony cultivation count. In exchange, the prosecution agreed to dismiss the prior strike allegation accompanying that count and two additional counts (felony possession of marijuana for sale and misdemeanor possession of cocaine). Defendant would serve 180 days in county jail, be placed on probation for five years and incur restitution and various fees and fines, including “Fish & Game Code fines and/or fees (maximum $20,000).” Also, if he completed probation successfully he could seek, and the prosecution would not oppose, reduction of the conviction to a misdemeanor. This negotiated disposition enabled defendant to avoid the possibility that he would serve up to three years, potentially in state prison (see Pen. Code, § 1170, subd. (h)(1) and (3)) and be subject to Fish and Game Code penalties of up to $25,000 for each of the six Fish and Game Code violations alleged in the complaint. (Fish & G. Code, § 1615, subd. (a)).

Defendant signed and initialed the plea form setting forth the terms of this plea agreement. He specifically initialed the “Restitution, Statutory Fees, and Assessments” portion of the plea form containing the agreement that he would pay “Fish & Game Code fines and/or fees (maximum $20,000).” The court approved the plea agreement and thereafter sentenced defendant in accordance with it.

II.

Defendant’s Appellate Claim

The court’s sentence included that defendant pay an $8,000 civil penalty. Defendant’s sole substantive claim on appeal is that this penalty violated the constitutional prohibition against ex post facto laws because the court was not authorized to impose it under the version of Health and Safety Code section 11358 (section 11358) that was in effect when he committed his offense, before voters amended that code provision by Proposition 64.[2] The People disagree, contending that the court did not impose such a civil penalty under the amended section 11538 any more than it did previously; rather, the court imposed that penalty under Fish and Game Code sections 1602 and 1615. The People contend that Proposition 64 “did not increase appellant’s punitive burden because his unlawful conduct always subjected him to the challenged fine under Fish and Game Code section 1602, but never under section 11358.”

We do not decide this ex post facto issue because defendant’s appeal is not cognizable. As the People point out, defendant did not request or obtain a certificate of probable cause. Instead, he checked the boxes on the notice of appeal form stating that the appeal was based on denial of a motion to suppress evidence, which defendant has not pursued. Also, he indicated he was appealing from a “sentence or other matters occurring after the plea that do not affect the validity of the plea.” We now address this contention.

III.

Defendant’s Appeal Must Be Dismissed for Lack of a Certificate of Probable Cause.

Penal Code section 1237.5 requires a defendant to file a written statement under penalty of perjury showing reasonable grounds for challenging the legality of the proceedings and obtain from the trial court a certificate of probable cause before he or she may appeal from a judgment of conviction on a plea of guilty or nolo contendere. (Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304(a), (b).) The courts have recognized two exceptions to this certificate requirement, one of which defendant relies on here. That is, no certificate is required where the defendant “ ‘is not attempting to challenge the validity of his plea of guilty but is asserting only that errors occurred in the subsequent adversary hearings conducted by the trial court for the purpose of determining the degree of the crime and the penalty to be imposed.’ ” (People v. Johnson (2009) 47 Cal.4th 668, 677 (Johnson).) In other words, an exception applies to an appeal that challenges only the sentence imposed, since “the potential grounds for claims of error in sentencing are the same whether the defendant has pleaded guilty or whether he or she has pleaded not guilty and been found guilty after a trial.” (Id. at p. 678).

However, as Johnson further explained, this exception is itself subject to an exception: “Even when a defendant purports to challenge only the sentence imposed, a certificate of probable cause is required if the challenge goes to an aspect of the sentence to which the defendant agreed as an integral part of a plea agreement.” (Johnson, supra, 47 Cal.4th at p. 678, italics added; see, e.g., People v. Panizzon (1996) 13 Cal.4th 68, 73 (Panizzon) [certificate required for claim that imposition of sentence to which defendant agreed pursuant to plea agreement constituted cruel and unusual punishment].) “The rationale for the exception to the certificate requirement . . . does not apply in such cases because, as a consequence of the plea agreement, the validity of an agreed-upon aspect of the sentence is not in contention at the sentencing hearing. Such an agreed-upon aspect of the sentence cannot be challenged without undermining the plea agreement itself. Consequently, an attack upon an integral part of the plea agreement ‘is, in substance, a challenge to the validity of the plea . . . .’ ” (Johnson, at pp. 678–679.)

Thus, the issue here is whether the civil penalty imposed by the court was “an integral part of the plea agreement” within the meaning of Johnson such that defendant’s challenge to the penalty is “in substance, a challenge to the validity of the plea.” Defendant contends his challenge is not an attack on the plea because he is “not contending he did not unlawfully cultivate marijuana in violation of Health and Safety Code section 11358,” but is instead attacking the imposition of a civil penalty on the ground that it violates the ex post facto clause. This ignores what the rule articulated in Johnson was about. The language in Johnson that we have quoted does not address legal challenges to guilt. Rather, it addresses appeals that seek to challenge the sentence imposed after a plea and holds that if the sentence is part of the plea agreement, the probable cause requirement applies. That is precisely the circumstance before us.

In effect, defendant seeks to make a constitutional challenge to a bargained-for burden imposed by the plea agreement while retaining the benefits he received under that agreement.[3] This is an attack on the plea as surely as if he sought to revoke the plea altogether. Panizzon is on point. There, the defendant pled no contest to several felony counts as part of a plea agreement providing his sentence would be life with the possibility of parole, plus 12 years. (Panizzon, supra, 13 Cal.4th at p. 73.) The trial court imposed the agreed-upon sentence. (Id. at pp. 73–74.) Defendant filed a notice of appeal claiming his sentence was disproportionate to those of his codefendants and therefore in violation of the federal and state constitutional provisions barring cruel and unusual punishment. (Id. at p. 74.) The defendant did not seek to challenge the validity of his no contest plea but sought only “to appeal the constitutionality of the sentence to which he agreed as part of the negotiated plea bargain.” (Id. at p. 76.) The court rejected his argument that the appeal fell within the exception to the certificate of probable cause requirement for post-plea matters that do not go to the validity of a plea, observing: “Here, by contesting the constitutionality of the very sentence he negotiated as part of the plea bargain, defendant is, in substance, attacking the validity of the plea. For that reason, . . . we hold that the certificate requirement of section 1237.5 applies.” (Id. at p. 78.)

Similarly, in People v. Shelton (2006) 37 Cal.4th 759 (Shelton), our Supreme Court rejected the argument that no certificate was necessary to challenge a bargained-for maximum sentence that was prohibited as multiple punishment under Penal Code section 654. The court reasoned that “inclusion of a sentence lid [in a plea agreement] implies a mutual understanding and agreement that the trial court has authority to impose the specified maximum sentence and preserves only the defendant’s right to urge that the trial court should or must exercise its discretion in favor of a shorter term. Accordingly, a challenge to the trial court’s authority to impose the lid sentence is a challenge to the validity of the plea requiring a certificate of probable cause.” (Shelton, at p. 763, italics added; see also People v. Cuevas (2008) 44 Cal.4th 374 [claim that under section 654 the trial court lacked the authority to impose a sentence as agreed to in a plea agreement was a challenge to the plea’s validity, requiring a certificate of probable cause].)

Defendant also argues his case is distinguishable from cases like Shelton and Johnson because “here, the ex post facto violation involves an issue of fundamental jurisdiction. ‘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.’ ” He relies on two cases for his argument, In re Harris (2003) 5 Cal.4th 813 (Harris) and People v. Loera (1984) 159 Cal.App.3d 992, 998 (Loera). His argument is unpersuasive for two reasons.

First, defendant wrongly characterizes his appeal as involving an issue of “fundamental jurisdiction.” As discussed in Harris, generally a court lacks “fundamental jurisdiction” when it lacks “jurisdiction over the person or the subject matter.” (Harris, supra, 5 Cal.4th at p. 836.) Defendant does not argue that the trial court lacked fundamental jurisdiction, but rather that it should not have imposed an unconstitutional civil penalty that was within the agreed-to range of the plea agreement. At its core, this argument is no different than the argument rejected in Panizzon, in that defendant attacks the constitutionality of a sentence imposed “in accordance with the previously entered plea.” (Panizzon, supra, 13 Cal.4th at p. 78.) Defendant’s argument is also very similar to that rejected in Shelton, in that the trial court imposed a sentence—in this case a civil penalty—that was within the range agreed to by the parties, which “implies a mutual understanding and agreement that the trial court has authority to impose the specified maximum” penalty. (Shelton, supra, 37 Cal.4th at p. 763.)

Defendant employs a sleight of hand in citing to Harris in support of his contention that the trial court lacked fundamental jurisdiction to impose this monetary penalty. Harris does not involve a defendant’s challenge to integral aspects of a plea agreement or any implied agreement that a trial court has the authority to act consistent with that agreement. Instead, Harris considered whether a petitioner could via a writ of habeas corpus challenge a trial court’s order sentencing petitioner as an adult for criminal acts committed while a juvenile as in excess of the trial court’s powers. The court observed that “the narrow view that habeas corpus addressed only strict jurisdictional issues has changed over the years” so that “ ‘the concept of fundamental jurisdictional error, for the purpose of a writ of habeas corpus, is no longer strictly limited to cases in which the trial court wholly lacks jurisdiction over the person of the defendant or the subject matter of the proceeding; the concept encompasses any error of sufficient magnitude that the trial court may be said to have acted in excess of jurisdiction.’ ” [Citation.] . . . ‘For purposes of [the writ of habeas corpus], the term “jurisdiction” is not limited to its fundamental meaning, and in such proceedings judicial acts may be restrained or annulled if determined to be in excess of the court’s powers as defined by constitutional provision, statute, or rules developed by courts.’ [Citation.] This view is consistent with the statutory scheme governing habeas corpus, which provides that a prisoner may be discharged from custody ‘When the jurisdiction of [the committing] court . . . has been exceeded.’ (§ 1487, subd. 1, italics added.)” (Harris, supra, 5 Cal.4th at pp. 838–839.)

Thus, Harris acknowledged the expanding concept of jurisdictional error that could be addressed by habeas corpus, which was consistent with the specific statutory scheme for such writs. However, the Harris court did not alter the definition of “fundamental jurisdiction.” As our Supreme Court more recently elaborated: “A lack of fundamental jurisdiction is ‘ “ ‘an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties. [Citation] . . .’ [¶] . . . “[F]undamental jurisdiction cannot be conferred by waiver, estoppel, or consent. Rather, an act beyond a court’s jurisdiction in the fundamental sense is null and void” ab initio.” ’ ” (Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 339.) Rather than make such a claim, defendant contends that he has the right to challenge a court’s sentence made in accordance with a plea agreement as being unconstitutional, i.e., illegal, without obtaining a certificate of probable cause. He cannot.

Indeed, our Supreme Court rejected a very similar contention in People v. Hester (2000) 22 Cal.4th 290 (Hester). There, the defendant challenged a rule providing that a defendant waived a sentencing challenge under Penal Code section 654 by agreeing to a specified prison term. The defendant argued the rule was inconsistent with section 654, but the court understood his argument as based on the general rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object in the trial court. (Hester, at pp. 294–295.) The Hester court concluded that general rule did not apply in the plea bargaining context: “Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that [sentence], so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process. [Citations.] While failure to object is not an implicit waiver of section 654 rights, acceptance of the plea bargain here was. ‘When a defendant maintains that the trial court’s sentence violates rules which would have required the imposition of a more lenient sentence, yet the defendant avoided a potentially harsher sentence by entering into the plea bargain, it may be implied that the defendant waived any rights under such rules by choosing to accept the plea bargain.’ ” (Id. at p. 295.) In other words, the general rule that an unlawful sentence can be reviewed at any time, with or without having first been raised in the trial court, does not relieve the defendant of all obligations under statutes and rules that govern plea agreements. The Legislature has by statute imposed a requirement that a defendant appealing after entering a plea must obtain a certificate of probable cause prior to filing an appeal, and the general rule about appeals from sentencing decisions does not trump that statutory requirement.

Second, defendant cites an inapposite case, Loera, for the proposition that he can challenge the court’s imposition of a monetary penalty without obtaining a certificate of probable cause under Penal Code section 1237.5. In that case, another division of this court rejected a defendant’s challenge to the application of a sentence enhancement after he had pled guilty to certain counts and admitted the enhancement as part of a plea agreement. (Loera, supra, 159 Cal.App.3d at pp. 996–997.) The defendant had admitted the enhancement allegation as part of the negotiated resolution and had not objected to it when he was sentenced. (Id. at p. 997.) The court held defendant had not waived his right to challenge the sentence enhancement either by his admission and inaction during the plea and sentencing proceedings or by his failure to secure a certificate of probable cause. (Id. at p. 998.) In effect, its second holding was that no such certificate was required.

Defendant relies on this second holding in Loera to contend he was not required to obtain a certificate of probable cause. On that point, the relevant post-Loera Supreme Court decisions are Panizzon and Shelton which, as we have discussed, reject the argument that no certificate of probable cause is required. Whether Loera’s holding remains good law in the wake of Panizzon and Shelton is questionable.[4] Nonetheless, we need not decide that issue either because the legal questions of this case are less like those addressed by this court in Loera and more like those our Supreme Court addressed in Panizzon and Shelton.

Loera, as we have said, involved an enhancement that increased the defendant’s sentence, albeit not beyond the level to which he had agreed in connection with his plea. The defendant admitted the enhancement allegation as part of the negotiated plea but then challenged it on appeal on various legal grounds. Our case, on the other hand, involves a challenge to the civil penalty part of the basic sentence itself, rather than to an additional enhancement or other factor that affected the sentence. Defendant agreed specifically to a fine or penalty of up to $20,000, and the trial court imposed a penalty of $8,000, which was well within the agreed-upon range. Panizzon likewise challenged a sentence to a term of years to which the defendant had specifically agreed, and not to an enhancement or other factor on which the sentence would potentially depend. The same is true of Shelton, in which the defendant agreed to a sentence with a “lid” and, having agreed to it, then sought to reduce the term based on a section 654 argument. These two cases, while involving a prison term rather than a fine or penalty, are nonetheless closer to our case than Loera, and both held a certificate of probable cause was a prerequisite to appeal. We conclude based on Panizzon and Shelton that defendant was required to obtain a probable cause certificate before he could challenge the penalty aspect of his sentence, to which he had agreed as an integral part of the negotiated disposition of his case.

Finally, defendant contends that we should excuse his noncompliance with the certificate requirement because, at the sentencing hearing, his counsel asked the court if it would consider issuing a certificate of probable cause and the court told him it did not think defendant needed one. Defendant claims it would have been futile for him to request a certificate of probable cause. We disagree. The court’s statement was in response to defense counsel’s oral inquiry at the end of the sentencing hearing whether the court would “consider[] issuing a certificate of probable cause on the issue of whether a civil penalty under Section 1615 of the Fish and Game code may be imposed.” The court was not asked about, and did not indicate it would not grant, a request for a certificate based on the ex post facto clause argument defendant makes here. We will not presume futility based on the court’s response to a question about an appeal on an issue different from the one defendant ultimately raised, particularly when defendant did not request a certificate of probable cause by filing 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,” as required by the statute. (Pen. Code, § 1237.5, subd. (a).)

In rejecting defendant’s futility argument, we are guided by People v. Mendez (1999) 19 Cal.4th 1084, in which the court described Penal Code section 1237.5 as “lay[ing] down a ‘condition precedent’ to the taking of an appeal within its scope,” as a “general ‘legislative command’ to defendants,” and as “not an authorization for ‘ad hoc dispensations’ from such a command by courts.” (Mendez, at p. 1098.) It directed this and other appellate courts to apply section 1237.5 “in a strict manner.” (Ibid.) We shall follow this instruction.

DISPOSITION

The appeal is dismissed.

STEWART, J.

We concur.

KLINE, P.J.

RICHMAN, J.

People v. Sanchez-Herrera (A152612)