Filed 4/13/17 P. v. Boone CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
LAURENCE BOONE,
Defendant and Appellant.

A148033

(Marin County
Super. Ct. No. SC192730A)


Defendant Laurence Boone was sentenced to a three-year term after pleading guilty to second degree burglary. (Pen. Code, § 459, 460, subd. (b).) Before entering his plea, and again at sentencing, defendant asked the court to reduce his second degree burglary charge to misdemeanor shoplifting pursuant to section 1170.18, a resentencing provision that was enacted as part of Proposition 47. On appeal, he contends the court erred in denying his petition to reduce the felony burglary charge to a misdemeanor. Because defendant failed to secure a certificate of probable cause, his challenge to the felony burglary conviction is not cognizable on appeal. Consequently, we shall dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2015, defendant entered the Fitness SF health club in Corte Madera during business hours carrying a black gym bag. The gym staff at the health club recognized defendant as a person who had committed a burglary at another Fitness SF location. The club’s manager followed defendant into the locker room and saw defendant looking around. When defendant realized he had been followed, he left the health club, walked across the street, and dropped the bag. The club manager looked inside the abandoned gym bag and saw a bolt cutter, two large flat head screwdrivers, and gym clothes. The club manager identified defendant in a police photo lineup as the person he had seen in the health club.
In a first amended complaint, the Marin County District Attorney charged defendant with second degree burglary (§§ 459, 460, subd. (b)) and misdemeanor possession of burglar tools (§ 466). It was also alleged that defendant had ten prior felony convictions that made him presumptively ineligible for probation (§ 1203, subd. (e)(4)) and had served eight prior prison terms within the meaning of section 667.5, subdivision (b).
In December 2015, defendant filed a petition under section 1170.18 asking the court to reduce the pending felony charge for second degree burglary to misdemeanor shoplifting under section 459.5. Defendant acknowledged the “procedural irregularit[y]” of pursuing relief under section 1170.18, which is only available to persons who are serving a sentence for a conviction of specified felonies or who have completed such a sentence. (See § 1170.18, subds. (a) & (f).) Nevertheless, defendant urged the court to liberally construe the statute and reduce the charge against him. The prosecutor opposed the petition, arguing that the plain, common sense meaning of shoplifting encompasses the theft of merchandise from a store and does not include theft of patrons’ personal property from gym lockers.
The court denied defendant’s section 1170.18 petition. The court expressed the view that the shoplifting statute distinguishes between theft crimes targeting commercial establishments and those targeting private citizens who happen to be victimized in commercial establishments.
Following the denial of his section 1170.18 petition, defendant pleaded guilty to the charges against him and admitted that he had served eight prior prison terms within the meaning of section 667.5, subdivision (b). In exchange for his plea, it was agreed that defendant would serve a three-year state prison term. As part of the agreement, the court would consider imposing a split sentence under section 1170, subdivision (h), but defendant was offered no guarantee he would receive a split sentence.
At sentencing, defendant orally renewed his section 1170.18 petition, which was again denied. The court declined to impose a split sentence and instead sentenced defendant to the upper term of three years in state prison for the second degree burglary conviction, to be served in county jail pursuant to section 1170, subdivision (h)(2). The court stayed the eight prior prison term enhancements.
This timely appeal followed. In the notice of appeal, defendant indicated the “appeal is based on the sentence or other matters occurring after the plea that do not affect the validity of the plea.” Defendant did not seek a certificate of probable cause.
DISCUSSION
Defendant’s sole claim on appeal is that the court erred in denying his section 1170.18 petition to reduce the second degree burglary charge to misdemeanor shoplifting. The People argue that we lack jurisdiction to consider defendant’s appeal because he failed to secure a certificate of probable cause. Because defendant is in substance challenging the validity of his guilty plea, we agree with the People.
Section 1237.5, subdivision (a) provides that a defendant may not appeal a judgment of conviction entered on a plea of guilty or nolo contendere unless he or she has filed a statement with the trial court “showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings,” and has obtained a certificate of probable cause for the appeal. (See People v. Mendez (1999) 19 Cal.4th 1084, 1095–1096.) However, if the appeal is based solely upon grounds occurring after entry of the plea, which do not challenge its validity, such as sentencing issues, a certificate of probable cause is not required. (Cal. Rules of Court, rule 8.304(b)(4)(B); People v. Cuevas (2008) 44 Cal.4th 374, 379.) “In determining whether an appeal is cognizable without a certificate of probable cause, ‘ “the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.” [Citation.]’ [Citation.] If the challenge is in substance an attack on the validity of the plea, defendant must obtain a certificate of probable cause.” (People v. Emery (2006) 140 Cal.App.4th 560, 564–565.) We must order dismissal of an appeal that is based solely on grounds requiring a certificate of probable cause if the appellant has failed to secure a certificate. (People v. Mendez, supra, at p. 1096.)
Here, defendant pleaded guilty to second degree burglary after his petition to reduce the charge to a misdemeanor was denied. A guilty plea “ ‘ “admits all matters essential to the conviction.” ’ ” (People v. Zuniga (2014) 225 Cal.App.4th 1178, 1187.) It “waives the right to an appellate challenge based on insufficiency of the evidence and implies admission that the People can establish every element of the charged offense . . . .” (People v. Hughes (1980) 112 Cal.App.3d 452, 460.) In addition to the fact that defendant entered a plea that admitted all matters essential to his felony conviction, he also agreed to a specified sentence of three years in exchange for his plea. The agreed-upon sentence was predicated upon defendant’s conviction of a felony—i.e., but for a felony conviction, there would have been no basis to impose a three-year sentence. The only issue that remained to be resolved at sentencing was whether his three-year sentence could be imposed as a split sentence in which he would serve a concluding portion of his sentence in a form of supervised release referred to as mandatory supervision. (See § 1170, subd. (h)(5).) Under these circumstances, defendant’s appeal amounts to an attack on the validity of his guilty plea and the sentence he agreed to as part of that plea. (See People v. Panizzon (1996) 13 Cal.4th 68, 89 [challenge to negotiated sentence imposed as part of plea is in substance an attack on the plea].)
Defendant nevertheless argues he is merely challenging a post-plea sentencing issue. He relies upon case law establishing that the certificate requirement does not apply to post-plea proceedings “for the purpose of determining the degree of the crime and the penalty to be imposed.” (People v. Ward (1967) 66 Cal.2d 571, 574.) Defendant adds that a certificate of probable cause is not required to address issues that are left open for litigation by the terms of the plea. (See People v. Buttram (2003) 30 Cal.4th 773, 783 [no certificate required where guilty plea to murder left open degree of murder and punishment].) Here, however, the plea did not leave open the issue of whether defendant’s felony conviction might be reduced to a misdemeanor. The only issue that was left open by the plea was whether defendant’s agreed-upon three-year term could be imposed as a split sentence with some portion of the sentence served on mandatory supervision. Consequently, we disagree with defendant’s assertion that he “made no plea bargain nor agreed to any terms that precluded his renewing this sentencing issue on appeal.”
Defendant also characterizes the remedial provisions of section 1170.18 as a post-conviction sentencing matter that may be addressed on appeal without a certificate of probable cause. For the reasons that follow, we do not agree that defendant was eligible for relief under section 1170.18 or that his petition to reduce his conviction under that statute is cognizable as a sentencing issue.
Section 1170.18 was added by Proposition 47, which became effective upon approval by the voters on November 5, 2014. (See People v. Bush (2016) 245 Cal.App.4th 992, 1000.) Proposition 47 reduced the punishment for specified drug and theft-related offenses previously designated as felonies or wobblers, unless the crimes were committed by certain ineligible defendants. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091–1092.) Proposition 47 achieves its objective by providing prospective and retrospective relief. (People v. Bush, supra, at p. 1000.) Prospective relief applies to defendants not yet sentenced as of the date Proposition 47 took effect, who benefit from the redesignation of certain felonies or wobblers as misdemeanors. (See ibid.) As relevant here, Proposition 47 added section 459.5, which created the new crime of misdemeanor shoplifting for criminal activity that would have previously been characterized as commercial burglary. (Ibid.) Retrospective relief is available to defendants who were already serving a sentence for a conviction of an offense reclassified as a misdemeanor pursuant to Proposition 47, or who had completed such a sentence. (Ibid.; § 1170.18. subds. (a), (f).) Defendants eligible for retrospective relief may file a petition pursuant to section 1170.18 seeking to be resentenced under the provisions of Proposition 47.
In this case, defendant was not eligible for retrospective relief under section 1170.18. At the time Proposition 47 passed, he had not even committed his crime much less been charged, convicted, or sentenced. Defendant admits that he was not eligible to seek relief under subdivision (f) of section 1170.18, which only applies to defendants who have completed a sentence. But he claims he was entitled to seek relief under subdivision (a) of section 1170.18, which applies to defendants “currently serving a sentence” for a felony conviction of an offense reclassified under Proposition 47. He also contends the remedial statute does not require the defendant to have been serving his or her sentence as of the date Proposition 47 was passed.
Defendant’s claim that he was eligible for resentencing under subdivision (a) of section 1170.18 is inconsistent with the plain language of the statute. He was not “currently serving a sentence” subject to resentencing under Proposition 47 either at the time he initially filed his section 1170.18 petition or at the sentencing hearing when he renewed the petition. Furthermore, we disagree with the contention that a defendant sentenced after the effective date of Proposition 47 is eligible for resentencing under the retrospective remedial provisions of section 1170.18. That section provides a retrospective remedy for defendants sentenced before Proposition 47 became effective. (See People v. Shabazz (2015) 237 Cal.App.4th 303, 310 [section 1170.18 identifies two ways a defendant sentenced “prior to Proposition 47’s effective date” may be resentenced]; see People v. Bush, supra, 245 Cal.App.4th at p. 1000 [distinguishing between prospective relief for defendants not yet sentenced when Proposition 47 took effect and retrospective relief under section 1170.18 for defendants already sentenced at the time].) The retrospective relief afforded by section 1170.18 was intended to give defendants who were sentenced before the effective date of Proposition 47 the benefit of the changes in the law that reclassified certain offenses as misdemeanors. Here, defendant already had the benefit of the changes in the law enacted by Proposition 47 at the time he pleaded guilty to felony burglary. He could not seek to reduce his felony offense to a misdemeanor under the remedial provisions of section 1170.18 on the ground he lacked the benefit of Proposition 47 at the time of his plea. Consequently, defendant’s filing of a section 1170.18 petition under these circumstances was not just a procedural irregularity, as defense counsel characterized the petition. Instead, the petition was unauthorized and sought relief to which he was not entitled.
As the People point out, if defendant believed that his criminal conduct did not qualify as a felony burglary, he should have challenged the sufficiency of the evidence supporting the charge after a preliminary hearing, as authorized under section 995. He could have argued that the evidence at most supported a charge of misdemeanor shoplifting. If his section 995 motion had been denied and defendant later pleaded guilty to felony burglary, he would have been precluded from challenging the denial of his section 995 motion on appeal even if he had secured a certificate of probable cause. (See People v. Padfield (1982) 136 Cal.App.3d 218, 227.) Defendant cannot avoid this result and the consequence of his guilty plea by pursuing an unauthorized section 1170.18 petition that effectively sought to set aside the plea in order to secure a more favorable outcome.
We conclude that defendant’s appeal constitutes an attack on the validity of his guilty plea and the negotiated sentence to which he agreed. Further, because he pleaded guilty to felony burglary after the effective date of Proposition 47, he is not entitled to be resentenced under the retrospective remedial provisions of section 1170.18. In the absence of a certificate of probable cause, we are compelled to dismiss the appeal.
DISPOSITION
The appeal is dismissed.
 


_________________________
McGuiness, P.J.


We concur:


_________________________
Pollak, J.


_________________________
Jenkins, J.






A148033