Opinion
C087396
11-08-2019
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW DEAN BAKER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18CF01316)
Defendant Matthew Dean Baker pled no contest to unlawfully driving a vehicle and admitted two prior prison-term allegations in exchange for the dismissal of several additional pending charges. He was sentenced to an aggregate prison term of six years, including one year for a prior prison term enhancement based on a 2005 conviction for receiving stolen property. On appeal, he contends this court must strike his one-year prior prison term enhancement because the underlying conviction for receiving stolen property was reduced to a misdemeanor in 2015 under Proposition 47, entitled "the Safe Neighborhoods and Schools Act." Defendant's failure to obtain a certificate of probable cause forecloses appellate review of his claim.
I. BACKGROUND
Defendant drove a stolen vehicle while under the influence of methamphetamine. On May 2, 2018, he pled no contest to one count of unlawfully driving a vehicle with a prior conviction (Veh. Code, § 10851, subd. (a); Pen. Code, § 666.5). Additionally, he admitted two prior prison-term enhancements, including one based on a 2005 Butte County conviction for receiving stolen property (§ 496, subd. (a)). (§ 667.5, subd. (b).) Under the plea agreement, defendant agreed to a serve a prison term of up to six years based on the offense and enhancements. According to the probation report, the 2005 conviction was purportedly reduced to a misdemeanor on May 8, 2015; however, the probation report does not note whether the conviction was reduced pursuant to Proposition 47. Defense counsel did not object to the enhancement. When the court determined which among his prior convictions would form the basis for the enhancement, counsel expressly agreed to use the 2005 Butte County conviction. In exchange for his plea, several additional charges were dismissed. The trial court sentenced defendant to an aggregate prison term of six years as follows: the upper term of four years for the vehicle theft offense under section 666.5 and a consecutive two years for his two prison priors. Defendant timely appealed but did not obtain a certificate of probable cause.
Further undesignated statutory references are to the Penal Code. --------
II. DISCUSSION
"Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors)." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) It also added section 1170.18, which "allows those who have already completed their sentences for Proposition 47 eligible felony convictions to petition to have their convictions 'designated as misdemeanors.' [Citation.]" (People v. Buycks (2018) 5 Cal.5th 857, 871 (Buycks).) In Buycks, the Supreme Court resolved an issue on which the appellate courts had disagreed—whether a felony reduced to a misdemeanor under Proposition 47 can still function as the basis for a prior prison term enhancement. Our high court concluded that "section 1170.18, subdivision (k) can negate a previously imposed section 667.5, subdivision (b), enhancement when the underlying felony attached to that enhancement has been reduced to a misdemeanor under [Proposition 47]." (Id. at p. 890.)
As a general rule, a criminal defendant who enters a guilty or no contest plea with a maximum-possible sentence pursuant to a negotiated plea agreement may not challenge that sentence on appeal unless he or she first obtains a certificate of probable cause from the trial court. (§ 1237.5, subd. (b); People v. Cuevas (2008) 44 Cal.4th 374, 376-377, 379-380.) This requirement is strictly enforced. (In re Chavez (2003) 30 Cal.4th 643, 652-657.) Two types of issues may be raised in a guilty or no contest plea appeal absent a certificate: "(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.) For the second exception, "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." (Id. at p. 76.) "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.)
Based on the analysis of Harris v. Superior Court (2016) 1 Cal.5th 984 (Harris), courts have held that a certificate of probable cause is not required to raise an issue arising from a change in law after entry into a plea agreement because the subsequent change in the law was implicitly incorporated into the plea agreement. (People v. Baldivia (2018) 28 Cal.App.5th 1071, 1077-1079 (Baldivia) [Proposition 57]; People v. Hurlic (2018) 25 Cal.App.5th 50, 53-54 (Hurlic) [Senate Bill No. 620].) Citing Hurlic, the Baldivia court reasoned that "no defendant could possibly obtain a certificate to make a challenge based on a law that did not exist at the time of sentencing." (Baldivia, supra, at p. 1077.)
Defendant argues he is excused from the probable cause requirement because "[p]rior to 2018, there was uncertainty as to the law regarding Proposition 47's effect on prison prior enhancements." Not so. First, the record does not affirmatively demonstrate that defendant's 2005 felony was reduced to a misdemeanor under Proposition 47. The probation report notes the prior conviction was "[r]educed to a misdemeanor" on May 8, 2015, but it does not state whether it was reduced under Proposition 47. Second, in contrast to the facts in Hurlic and Baldivia, here, there has not been a subsequent change in law. Unlike the legislative acts in those cases, which took effect after the defendant's plea, Proposition 47 had been in effect for nearly four years when defendant entered his plea. Indeed, the felony complaint was filed in this case on February 13, 2018, and defendant's plea was entered May 2, 2018, several years after the purported reduction of defendant's felony.
Defendant's claim that Buycks represented a subsequent change in law is also unavailing. Buycks aligned with the predominant line of authority regarding Proposition 47's application, including published authority of this court. (See, e.g., People v. Kindall (2016) 6 Cal.App.5th 1199, 1203-1205 [holding that prior offenses redesignated as misdemeanors before adjudication are reduced for all purposes and cannot support a prior prison-term enhancement].) Accordingly, this is not a subsequent change in law alleviating defendant from the probable cause requirement within the meaning of Hurlic and Baldivia.
Finally, defendant argues in the alternative that we should exercise our discretion to treat his appeal as a petition for a writ of habeas corpus under Buycks. There, the court reasoned, "[T]he collateral consequences of Proposition 47's mandate to have the redesignated offense 'be considered a misdemeanor for all purposes' can properly be enforced by means of petition for writ of habeas corpus for those judgments that were not final when Proposition 47 took effect." (Buycks, supra, 5 Cal.5th at p. 895.) This case is distinguishable on its facts because it was final long after Proposition 47 took effect. Thus, defendant's appeal is not an appropriate case to treat as a writ petition under Buycks.
Because defendant appeals from a judgment based on his plea of no contest and he failed to obtain a certificate of probable cause, his appeal must be dismissed. (§ 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1096-1097.)
III. DISPOSITION
The appeal is dismissed.
/S/_________
RENNER, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
DUARTE, J.