Filed 4/19/22 P. v. High CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Tehama)

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Defendant Brandon James High entered into an open plea agreement, pleading guilty to two substantive counts and admitting a Penal Code section 667.5, subdivision (b) prior prison term enhancement allegation.[1] Prior to sentencing, defendant moved to dismiss the prior prison term enhancement in the interests of justice. The trial court denied the motion and imposed sentence, including a one-year term for the enhancement.

On appeal, defendant contends (1) the prior prison term enhancement constitutes an unauthorized sentence because the underlying conviction was not a sexually violent offense, (2) he was denied the constitutionally effective assistance of counsel by his attorney’s failure to object to the complaint and/or argue at sentencing that his prior conviction was not a sexually violent offense, and (3) the trial court abused its discretion in denying his motion to strike or dismiss the enhancement in furtherance of justice pursuant to section 1385. We shall affirm the denial of defendant’s motion to strike or dismiss his section 667.5, subdivision (b) enhancement and otherwise dismiss defendant’s appeal.

FACTUAL AND PROCEDURAL BACKGROUND

On June 11, 2020, defendant and another individual were detained for taking approximately 27 items from a Walmart store in Red Bluff without paying for them.[2] The items were valued at $175.79.

On October 16, 2020, a Red Bluff Police Department officer saw defendant in a park and knew he was wanted by parole. Defendant ran off but eventually another officer detained him. During booking, an officer discovered 0.86 grams of methamphetamine hidden in defendant’s pocket.

Defendant was charged in case No. 20CR002508 (case No. 508) with possession of a controlled substance by someone previously convicted of an offense requiring registration pursuant to section 290, subdivision (c) (Health & Saf. Code, § 11377; count I), and with two counts of resisting, delaying, or obstructing a public officer, peace officer, or emergency medical technician (§ 148, subd. (a)(1); counts II & III). In connection with count I, it was further alleged defendant had a prior conviction of a serious or violent felony, specifically a conviction for violation of section 261, subdivision (a)(3) (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and that he had served a prior prison term for that conviction (§ 667.5, subd. (b)), which the complaint characterized as a “sexually violent prior conviction(s) as defined in Welfare and Institutions Code section 6600 [subdivision] (b)” and as a “prior sexually violent felony offense.”[3] (Bold and capitalization omitted.)

Defendant was subsequently charged in case No. 20CR002585 (case No. 585) with felony shoplifting with a prior conviction of an offense requiring registration pursuant to section 290, subdivision (c). (§ 459.5, subd. (a); count I.) It was further alleged defendant had been convicted of a “ ‘sexually violent offense’ as defined in Welfare and Institutions Code Section 6600 [subdivision] (b) and an offense requiring registration pursuant to . . . Section 290 [subdivision] (c).” That prior offense was the same violation of section 261, subdivision (a)(3) alleged in case No. 508.

Defendant entered into an open plea, pleading guilty to count I in case No. 508 (Health & Saf. Code, § 11377) and count I in case No. 585 (§ 459.5, subd. (a)). Additionally, defendant admitted to a prior prison term pursuant to section 667.5, subdivision (b). The remaining counts and special allegations were to be dismissed. At the plea proceedings, with regard to the prior prison term enhancement, defendant stated he was “admitting the [section] 667.5 [subdivision] (b).” The trial court asked, “One that exists under the new law?” The prosecutor responded, “t is, based on the prior conviction.” The court asked if it was “still a plus one,” to which defense counsel responded, “[c]orrect.” Defendant subsequently admitted he had previously been convicted “of a felony violation of . . . section 261 [subdivision] (a)(3) . . . .”

The prosecution opposed the motion. The prosecution essentially treated the motion as one to dismiss a strike prior under [i]People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

At sentencing, the parties submitted on their motion papers. The trial court denied defendant’s motions. The court denied probation and sentenced defendant to an aggregate term of three years eight months consisting of the midterm of two years on count I in case No. 508 (Health & Saf. Code, § 11377) as the principal term, one year for the section 667.5, subdivision (b) enhancement, and eight months, one-third the midterm, on count I in case No. 585 (§ 459.5, subd. (a)).

DISCUSSION

I

Unauthorized Sentence

1. The Parties’ Contentions and Defendant’s Prior Conviction

Defendant asserts his section 667.5, subdivision (b) one-year prior prison term enhancement must be stricken as an unauthorized sentence because violation of section 261, subdivision (a)(3) is not a “sexually violent offense” within the meaning of section 667.5, subdivision (b) or Welfare and Institutions Code section 6600.

Having undertaken a review of the appellate record in defendant’s appeal from that underlying judgment of conviction (People v. High (Feb. 26, 2016, C077943) [nonpub. opn.]), the Attorney General agrees the record does not support the section 667.5, subdivision (b) allegation. The Attorney General concedes the allegation, based on its particular facts, should not have been asserted in the complaint and the plea should not have included an admission to the allegation. The Attorney General asserts, however, that the allegation was an integral part of defendant’s plea, and that, absent a certificate of probable cause, defendant cannot challenge the terms or validity of his plea on this direct appeal.

In his reply brief, defendant insists he is challenging an unauthorized sentence and an error in the charging document, not the factual basis for, or validity of, the plea.

Based on the statutory language, as well as the particular circumstances of defendant’s offense (cf. People v. Manning (2014) 226 Cal.App.4th 1133, 1141, 1142 [“California courts have routinely determined that prior convictions constitute serious or violent felonies by looking to ‘the substance of a prior conviction, i.e., the nature and circumstances of the underlying conduct’ ”; “subdivision (b) of Section 6600 of the Welfare and Institutions Code explicitly defines a ‘sexually violent offense’ as any of the enumerated crimes ‘when committed by force, violence, [etc.]’ ”]), we agree with the parties that defendant’s prior conviction of violation of section 261, subdivision (a)(3) did not constitute a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). As such, that conviction would not properly support a section 667.5, subdivision (b) prior prison term enhancement.

2. Certificate of Probable Cause Requirement and Exceptions

“No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . . except where both of the following are met: [¶] (a) The defendant has filed 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. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.” (§ 1237.5; see also Cal. Rules of Court, rule 8.304(b) (Rule 8.304(b)).) Section 1237.5 and Rule 8.304(b) “should be applied in a strict manner.” (People v. Mendez (1999) 19 Cal.4th 1084, 1098 [discussing § 1237.5 and the predecessor to Rule 8.304(b)].)

Two types of issues may be raised on appeal where a defendant has entered a guilty or no contest plea even in the absence of a certificate of probable cause: “(1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.” (People v. Panizzon (1996) 13 Cal.4th 68, 74 (Panizzon), italics added; accord People v. Stamps (2020) 9 Cal.5th 685, 694 (Stamps).)

“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.” (Panizzon, supra, 13 Cal.4th at p. 76; accord, Stamps, supra, 9 Cal.5th at p. 694.) “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.” (People v. Johnson (2009) 47 Cal.4th 668, 678; accord, Stamps, at p. 694.) “ ‘[A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself’ and thus requires a certificate of probable cause.” (People v. Shelton (2006) 37 Cal.4th 759, 766 (Shelton), quoting Panizzon, at p. 79; see People v. Buttram (2003) 30 Cal.4th 773, 789 [“when the parties agree to a specified sentence, any challenge to that sentence attacks a term, and thus the validity, of the plea itself”].)

3. Analysis

Notwithstanding defendant’s framing of the issue, we agree with the Attorney General that the “error centers on the charging document and the plea—not on the validity of the sentence imposed for the enhancement.” In other words, the issue defendant’s appeal presents is not whether the imposition of a one-year term for a section 667.5, subdivision (b) enhancement was an unauthorized sentence. The issue is whether the section 667.5, subdivision (b) prior prison term enhancement allegation was valid and properly a component of defendant’s plea agreement.

Defendant asserts that, in his plea agreement, he admitted two facts concerning the prior conviction: that he sustained it and that it was a conviction of section 261, subdivision (a)(3). He continues: “[Defendant] has not challenged either fact because he did not want to undo the plea in the superior court and he does not want to undo the plea now.” Defendant acknowledges that he “wants the plea to remain in place,” but he requests that we strike the one-year prior prison term enhancement as an unauthorized sentence and strike the term “ ‘sexually violent offense’ ” from the complaint. However, what defendant admitted to in the trial court, wrongly, was that he was previously convicted of an offense qualifying him for a prior prison term enhancement pursuant to section 667.5, subdivision (b). While the allegation and admission were not true, the allegation, admission, and sentence contemplated were components of defendant’s plea agreement. Defendant’s challenge now to the sentence is “ ‘properly viewed as a challenge to the validity of the plea itself’ and thus requires a certificate of probable cause.” (Shelton, supra, 37 Cal.4th at p. 766, quoting Panizzon, supra, 13 Cal.4th at p. 79.)

Defendant asserts in his reply brief that, “[w]hile [his] past conduct does match the statute describing the conduct, the addition of a one-year term, which was intended for violent offenses, to a sentence for a prior that was not a violent offense does not result in appellant receiving the punishment the Legislature intended.” That may be true, as far as it goes. However, what is also true is that defendant’s admission to a prior prison term enhancement allegation pursuant to section 667.5, subdivision (b), and the one-year term to be imposed thereon, were components of his bargained-for plea agreement made with the prosecution and approved by the court. His challenge to it now is a challenge to the validity of the plea, not merely to a portion of his sentence he claims to be unauthorized. Defendant’s description of the “problem as a ‘legally erroneous description,’ not an ‘invalid allegation,’ ” is not persuasive.

Defendant notes that challenging the validity of the plea puts him at risk of losing the benefit of the plea he accepted. However, the one-year prior prison term enhancement was a component of that bargained-for plea agreement. What defendant seeks is to have that component of the agreement eliminated, thus altering the bargain and arguably depriving the prosecution of the benefit of the bargain to which it assented. While defendant asserts the “error was made by the State,” this fact, even assuming it to be true, does not allow defendant to circumvent the certificate of probable cause requirement.

Defendant also emphasizes his unfortunate background and claims that putting the burden on him of choosing between “undoing the plea and placing himself at risk of a longer term, or . . . trying to undo mistakes made by three legal professionals who were entrusted to serve the ends of justice” “should shock the conscience and one’s sense of fairness.” Regardless of the merits of these contentions, our task is to determine whether defendant’s “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.” (Panizzon, supra, 13 Cal.4th at p. 76; accord, Stamps, supra, 9 Cal.5th at p. 694.) We disagree with defendant that he is challenging an unauthorized sentence, and rather conclude he is indeed challenging the validity of the plea. “[T]he sentence defendant received was part and parcel of the plea agreement he negotiated with the People.” (Panizzon, at p. 78.) By contesting the validity “of the very sentence he negotiated as part of the plea bargain, defendant is, in substance, attacking the validity of the plea.” (Ibid.) “[A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself.” (Id. at p. 79; accord Shelton, supra, 37 Cal.4th. at p. 766.) As such, defendant was obligated to obtain a certificate of probable cause to pursue this appeal. (§ 1237.5; Panizzon, at pp. 78, 79.) Where, as here, a certificate of probable cause is required and the defendant has not obtained one, we may not proceed to the merits, but instead must dismiss the appeal. (§ 1237.5; People v. Mendez, supra, 19 Cal.4th at pp. 1096-1097, 1099; Shelton, at p. 769.)

II

Ineffective Assistance of Counsel

As an alternative to his argument in part I, defendant asserts he was deprived of the constitutionally effective assistance of counsel by his attorney’s failure to object to the complaint and/or to argue at sentencing that his prior was not a sexually violent offense. We have concluded in part I that the merits of defendant’s contentions are addressed to the validity of the plea and, therefore, barred by defendant’s failure to obtain a certificate of probable cause. For the same reasons, we conclude defendant’s ineffective assistance of counsel claim is also addressed to the validity of the plea. As such, this claim, too, is not cognizable absent a certificate of probable cause. (See People v. Stubbs (1998) 61 Cal.App.4th 243, 244 [the defendant’s ineffective assistance of counsel claims challenge propriety of guilty plea and, as such, the defendant was required to obtain a certificate of probable cause to raise the claims on appeal].)

III

Denial of Motion to Dismiss or Strike

As another alternative to his primary argument, defendant asserts the trial court abused its discretion in denying his motion to dismiss or strike the section 667.5, subdivision (b) allegation pursuant to section 1385. Defendant asserts that, because he “falls outside the three-strikes sentencing scheme, the trial court abused its discretion by refusing to strike his prior conviction.” Defendant sets forth the standard of review applicable to a typical Romero motion (People v. Superior Court (Romero), supra, 13 Cal.4th 497), and addresses his analysis to consideration of factors relevant to deciding such a motion.

As stated ante, one of the two types of issues that may properly be raised on appeal in the absence of a certificate of probable cause is addressed to “issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.” (Panizzon, supra, 13 Cal.4th at p. 74.) Insofar as defendant’s motion to dismiss the section 667.5, subdivision (b) enhancement allegation pertained to proceedings held subsequent to defendant’s plea for the purpose of determining the penalty to be imposed (Panizzon, at p. 74), not challenging the validity of the plea but merely requesting the court exercise its discretion to strike or dismiss the enhancement, it falls within this exception to the certificate of probable cause requirement. Conversely, to the extent defendant seeks to raise the validity of his section 667.5, subdivision (b) enhancement, as discussed ante, he may not do so absent a certificate of probable cause. (See Stamps, supra, 9 Cal.5th at p. 695; Panizzon, at p. 79.) Thus, we only address defendant’s contention insofar as he asserts the trial court abused its discretion in denying his motion under section 1385.[5]

Trial courts may strike section 667.5, subdivision (b) prior prison term enhancements under the authority granted in section 1385. (People v. Meloney (2003) 30 Cal.4th 1145, 1155 [a court retains “discretion under § 1385, subd. (c), to dismiss or strike an enhancement, or to ‘strike the additional punishment for that enhancement in the furtherance of justice’ ”].) “[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.)

In denying defendant’s motion, the trial court stated: “The Court has read and considered the moving papers . . . . In light of the totality of the circumstances of the current cases, the defendant’s records, et cetera, the Court is going to decline to grant both motions.”

In addition to the offenses to which defendant pled guilty here, he was charged in case No. 20CR002352 with misdemeanor failure to update his sex offender registration (§ 290.012, subd. (a)), and in case No. 20CR002476 with a parole violation. Defendant pleaded guilty to the former and admitted the latter.

With regard to his criminal history, defendant previously has been convicted of misdemeanor battery against a spouse or cohabitant (§ 243, subd. (e)(1)); misdemeanor brandishing a weapon other than a firearm (§ 417, subd. (a)(1)); misdemeanor assault with a deadly weapon other than a firearm (§ 245, subd. (a)(1)); criminal threats (§ 422); felony failure to appear (§ 1320.5); child endangerment (§ 273a, subd. (a)); resisting, delaying, or obstructing a public officer, peace officer, or emergency medical technician (§ 148, subd. (a)(1)); rape where the victim was prevented from resisting by an intoxicating or anesthetic substance or a controlled substance (§ 261, subd. (a)(3)); and felony possession of a controlled substance on three separate occasions (Health & Saf. Code, § 11377).

As stated in the probation report, defendant is “open and honest about his struggles with substance abuse. He was remorseful for his actions . . . .” Defendant knows he has substance abuse problems and hoped to get treatment.

Defendant’s attorney submitted supportive letters from defendant’s girlfriend, his daughter, and a 67-year-old man whom defendant helped in a variety of ways. The letters acknowledged defendant’s problems with drug abuse but described defendant as a good person who deserved a chance to overcome his issues.

Defendant emphasizes that, in accepting his plea and denying his request to strike the section 667.5, subdivision (b) enhancement, the trial court was under the erroneous belief he had a prior conviction of a sexually violent offense. He asserts it is not possible to know the extent to which the court’s determination was affected by this erroneous belief. This is true, to an extent. However, with regard to this conviction, it cannot be overlooked that the trial court could and presumably did properly consider defendant was convicted of rape where the victim was prevented from resisting by an intoxicating or anesthetic substance or a controlled substance (§ 261, subd. (a)(3)), which under no circumstances could be characterized as insignificant.

Taking all relevant factors into consideration, including, among other things, the charged offenses, defendant’s criminal history, his substance abuse issues, the letters in support, and the trial court’s apparent mistaken belief defendant had been convicted of a sexually violent offense, we cannot conclude the trial court’s decision was an abuse of discretion. (Cf. People v. Williams (1998) 17 Cal.4th 148, 161 [setting forth factors to consider in deciding whether to strike or vacate prior serious and/or violent felony conviction under “Three Strikes” law in furtherance of justice pursuant to § 1385].) The trial court’s determination was not “so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony, supra, 33 Cal.4th at p. 377.)

DISPOSITION

The denial of defendant’s motion to strike or dismiss his section 667.5, subdivision (b) enhancement pursuant to section 1385 is affirmed. The appeal is otherwise dismissed.

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BLEASE, J.

We concur:

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RAYE, P. J.

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KRAUSE, J.

[1] Further undesignated statutory references are to the Penal Code.

[2] As do both parties, we derive the underlying facts from the probation officer’s report.

[3] Subdivision (b) of section 667.5 provides, insofar as pertinent here: “Except when subdivision (a) applies, if the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code . . . .”

[4] Defendant filed another motion not at issue on this appeal.

[5] The last sentence of subdivision (a) of section 1385 provides: “A dismissal shall not be made for any cause that would be ground of demurrer to the accusatory pleading.” The Attorney General asserts defendant has “admit[ted] that his challenge to the . . . section 667.5, subdivision (b), enhancement was a ground for a demurrer,” implying the trial court could not have granted defendant section 1385 relief based on the last sentence of section 1385, subdivision (a). “The legal grounds for demurrer to an accusatory pleading are limited to those specifically enumerated in . . . section 1004.” (People v. Biane (2013) 58 Cal.4th 381, 388.) Under subdivision (5) of section 1004, a “defendant may demur to the accusatory pleading at any time prior to the entry of a plea, when it appears upon the face thereof” that the accusatory pleading “contains matter which, if true, would constitute a . . . legal bar to the prosecution.” If violation of section 261, subdivision (a)(3) could under no circumstances constitute a sexually violent offense, it is possible the matter contained in the allegation would be a “legal bar to the prosecution.” (§ 1004, subd. (5).) However, as the Attorney General explicitly argues elsewhere, a defendant could violate section 261, subdivision (a)(3) in such a way as to render the crime a sexually violent offense. (Cf. People v. Manning, supra, 226 Cal.App.4th at pp. 1139-1144.) Because defendant’s prior conviction of violation of section 261, subdivision (a)(3) was not a per se bar to the applicability of a section 667.5, subdivision (b) enhancement, the accusatory pleading did not necessarily contain matter which, if true, would constitute a legal bar to the prosecution. Thus, the last sentence of subdivision (a) did not preclude section 1385 relief.