Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA283842. Michael S. Luros, Judge.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
Martin Espinosa entered a plea of no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and was granted deferred entry of judgment (Pen. Code, § 1000 et seq.). He obtained a certificate of probable cause and he appeals, contending (1) that reversal is required because the trial court abused its discretion in denying a substantial part of his Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531); (2) that this court should review the sealed transcript of the in camera proceeding at which the trial court examined the personnel records of a sheriff’s deputy; and (3) that the trial court’s partial denial of his Pitchess motion deprived him of various federal constitutional rights at the hearing on his motion to suppress evidence (§ 1538.5).
All further statutory references are to the Penal Code unless otherwise indicated.
We asked the parties to submit letter briefs on the issue of whether appellant has the right to appeal following a grant of deferred entry of judgment or whether the appeal must be dismissed.
We conclude that the appeal must be dismissed.
FACTS AND PROCEDURAL BACKGROUND
The record reveals that on May 7, 2005, uniformed Los Angeles County Sheriff’s Deputies Godwin and Smeltzer, together with a third deputy, were in a marked patrol car when Godwin saw appellant make a left turn without signaling. Godwin effected a traffic stop and obtained appellant’s driver’s license. Smeltzer ran the license and learned that appellant had an outstanding arrest warrant. Appellant was arrested. A booking search of appellant conducted by Godwin disclosed a Ziplock baggie containing .08 grams of methamphetamine hidden in appellant’s sock.
Appellant was charged by information with possession of methamphetamine. He moved under Pitchess for disclosure of information bearing on officer misconduct as to Godwin and Smeltzer. The trial court granted the motion in part as to Smeltzer, who had written the police report, and denied the motion as to Godwin. The trial court conducted an in camera review of Smeltzer’s personnel records.
Appellant then moved to suppress the methamphetamine seized during the booking search, arguing that there was no probable cause to stop and detain his vehicle because the deputies had fabricated the claim that he had failed to use a turn signal. Following a hearing, the trial court credited Godwin’s testimony, found that appellant and his witness were not credible, and denied the motion.
Apart from the sealed transcript of the in camera review of Smeltzer’s personnel documents, the record does not indicate the result of the trial court’s review of those documents. No evidence relating to officer misconduct was introduced at the hearing on appellant’s suppression motion.
Appellant entered a no contest plea to the charged offense in return for a grant of deferred entry of judgment and the trial court’s signing of a certificate of probable cause. The prosecutor advised appellant, “[W]hile you are on deferred entry, you’ll be basically on felony probation at the same ti[m]e, so you would be subjected to the same terms and conditions as though you were on probation.” Appellant acknowledged that if he successfully completed an 18-month drug treatment program, entry of judgment would not be executed and the case would be dismissed, but if he failed to successfully complete the program, entry of judgment would be executed and he would be placed on felony probation. The trial court suspended imposition of sentence and deferred entry of judgment for 18 months, imposing various terms and conditions.
Among the terms and conditions were the requirements that appellant cooperate with the probation officer in a plan for drug abuse counseling and rehabilitation, report to the probation officer within 48 hours, seek and maintain training, schooling or employment as approved by the probation officer, keep the probation officer advised of his residence and employment address and his telephone numbers, support his dependents as directed by the probation officer, and submit to periodic antinarcotic testing when requested by the probation officer or any peace officer.
DISCUSSION
In People v. Mazurette (2001) 24 Cal.4th 789 (Mazurette), the Supreme Court held that there is no right to appeal following a grant of deferred entry of judgment. The court explained that the right to appeal is statutory. An order granting probation is appealable by virtue of section 1237, subdivision (a), which states that such an order is deemed to be a final judgment from which a defendant may appeal. (Mazurette, supra, at p. 792.) However, when, as here, a trial court has deferred the entry of judgment pursuant to section 1000.1, “there is -- as yet -- no judgment from which [a] defendant can appeal. . . . Only following entry of judgment pursuant to section 1000.3 will a judgment exist from which [a] defendant can appeal. . . . And, although section 1237.5 lists the special conditions that will permit an appeal from a ‘judgment of conviction’ following a plea of [no contest], that section has no application when, as here, there is not, as yet, a judgment of conviction.” (Mazurette, supra, at p. 794.)
As the court observed, under section 1000.1, subdivision (d), “‘[a] defendant’s plea of guilty pursuant to this chapter shall not constitute a conviction for any purpose unless a judgment of guilty is entered pursuant to Section 1000.3.’” (Mazurette, supra, 24 Cal.4th at p. 794.)
Appellant contends that the holding of Mazurette, which predated the effective date of Proposition 36, is inapplicable to his case. Proposition 36 provides that, under specified circumstances, a person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation, the individual must complete a drug treatment program, and if he successfully completes the program, the trial court is to set aside the conviction and dismiss the information. (§ 1210.1.)
Appellant argues that the Proposition 36 statutory scheme is superimposed on and, in the event of conflict, supercedes the deferred entry of judgment statutory scheme because of the “[n]otwithstanding any other provision of law” language contained in section 1210.1, subdivision (a). He reasons that since his nonviolent drug possession offense “came within the auspices of Proposition 36” and he was placed on probation in a disposition that comported with the requirements of Proposition 36, this appeal is authorized under section 1237, subdivision (a).
That section provides, “Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program.”
The Attorney General has opined that Proposition 36 did not repeal by implication or supercede the deferred entry of judgment provisions. (84 Ops.Cal.Atty.Gen. 85, 87 (2001); People v. Sharp (2003) 112 Cal.App.4th 1336, 1341.) More significantly, the Supreme Court in Mazurette rejected an argument similar to appellant’s. In Mazurette, the defendant argued that in light of the similarities between deferred entry of judgment and a grant of probation, they should be considered equivalent, and since a grant of probation is appealable under section 1237, a deferred entry of judgment should be deemed appealable under section 1237 as well. The Supreme Court disagreed, stating, “Because the right to appeal is wholly statutory, the similarity deferred entry of judgment bears to probation is irrelevant. The former simply is not listed in section 1237 as an appealable order or judgment. Accordingly, we cannot conclude the Legislature intended that orders granting deferred entry of judgment be appealable.” (Mazurette, supra, 24 Cal.4th at p. 796.)
Any similarities between the Proposition 36 statutory scheme and the deferred entry of judgment statutory scheme do not alter the reasoning expressed by our Supreme Court in Mazurette. A deferred entry of judgment is simply not an appealable order or judgment.
DISPOSITION
The appeal is dismissed.
We concur: DOI TODD, J., CHAVEZ, J.