Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-544548
Dondero, J.
Defendant entered a plea of no contest to manufacturing concentrated cannabis in violation of Health and Safety Code section 11379.6, subdivision (a), and giving a false name to a peace officer, a misdemeanor, in violation of Penal Code section 148.9. In this appeal he claims that the trial court erred by refusing to admit evidence of a medical marijuana recommendation as a defense to the charged marijuana manufacturing offense. We conclude that the issue has been waived by defendant’s no contest plea, and dismiss the appeal.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In light of the plea, our recitation of the facts, which is taken from the preliminary examination, will be concise and will focus on the issues presented in the appeal.
On the night of September 3, 2008, a vehicle in which defendant was riding was detained by a Petaluma Police Officer Jason Juctan. As the officer approached the vehicle he detected the “odor of marijuana” and noticed a “marijuana pipe sitting between” the legs of the driver, defendant’s wife Rebecca. During the ensuing search of the interior of the vehicle the officer seized eight pounds of marijuana in garbage bags, 230 butane lighter fluid bottles, two PVC pipes, each with a bronze nozzle at one end and an opening at the other end and a sticky, dark green residue inside, and two large Pyrex baking pans with the residue of a “very dark, sticky substance.” The marijuana “wasn’t strong, ” and appeared to be “shake, ” which are the “less potent” leaves or clippings of the marijuana plant, rather than “the actual buds.”
When questioned by the officer Rebecca stated that defendant processed the “shake marijuana” into “hash.” Rebecca also explained the process to the officer: the marijuana shake is placed into a PVC pipe closed at one end with a spigot, then heated with a butane lighter until it is emitted from the pipe as hashish in oil form, and drained into the pans. She also told the officer that she had observed defendant process the marijuana many times before, but did not participate in the procedure herself.
The officer also questioned defendant, who initially gave his first name as “David” rather than Daniel. Defendant stated that he cooked the marijuana clippings found in the trunk and “put it in food.”
Rebecca acknowledged that defendant’s first name was Daniel, and they were “lying about his name” because “he had an active warrant out of Humboldt County.” The officer confirmed the existence of the warrant.
Officer Juctan testified that based on his experience the residue substance he observed on the baking pans and PVC pipes was consistent with hashish oil. Detective Reynaldo Basurto of the Sonoma County Sheriff’s Department testified as an expert in the manufacturing of concentrated cannabis, known as “honey oil.” He further described the manufacturing process by testifying that the marijuana shake packed into the PVC pipe is ignited by butane, which then “retrieves all the THC from the leaf and clippings and comes out of the spigot end.” Detective Basurto offered the opinion that the items found in defendant’s vehicle “were possessed for the purpose of manufacturing honey oil, concentrated cannabis.”
An information was filed on September 30, 2008, that charged defendant with unlawful manufacturing of hashish (§ 11379.6, subd. (a)), unlawful cultivation or processing of marijuana (§ 11358), unlawful transportation of marijuana (§ 11360, subd. (a)) and giving a false name to a police officer (Pen. Code, § 148.9), among other offenses. At the commencement of jury trial on December 2, 2008, defendant proffered a defense based on the Compassionate Use Act of 1996 (§ 11362.5 et seq.) – which provides a defense for qualified patients and their primary care givers to charges of possession of marijuana for personal medical use (§ 11357) and cultivation of marijuana for medical use (§ 11358), but not to charges of producing concentrated cannabis by chemical extraction (§ 11379.6) – and in support of defense he submitted a valid doctor’s recommendation for medicinal marijuana. The trial court ruled that defendant could present a compassionate use defense only to the charge of cultivation of marijuana, not to the offense of unlawful manufacturing of a controlled substance.
See section 11362.5, subdivision (b)(2): “Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.”
After the validity of defendant’s medicinal marijuana recommendation was verified, the prosecution proposed to dismiss counts 2 and 3, the cultivation and transportation of marijuana charges, over objection by the defense. On December 2, 2008, as voir dire proceeded, an amended information was filed which omitted those charges and accused defendant of only two offenses: unlawful manufacturing of hashish in violation of section 11379.6, and the misdemeanor offense of giving a false name to a police officer in violation of Penal Code section 148.9. Following the trial court’s ruling that defendant was precluded from presenting a medicinal marijuana defense to the charge of a violation of section 11379.6, on February 2, 2009, he entered a plea of no contest to the two offenses charged in the amended information. Upon the request of his counsel defendant was granted a certificate of probable cause for the professed purpose of “allow[ing] more expeditious review of the question that arose of whether a medical marijuana defense should be permissible for an 11379.6 charge.”
DISCUSSION
Defendant argues that the trial court erred by foreclosing him from presenting a defense based on the Compassionate Use Act of 1996 (§ 11362.5). He claims that processing marijuana “with butane to produce concentrated cannabis, or hashish, is not, by definition, chemical extraction, ” but rather a “physical” process, so “he should not have been charged under Health and Safety Code section 11379.6, which by its language is limited to chemical extraction and chemical synthesis.” Defendant maintains that the only appropriate charge based upon the facts was a violation of section 11358, which under section 11362.5, subdivision (d), would have provided him with a defense and granted him limited immunity from prosecution for cultivation of marijuana for personal medical purposes upon the written or oral recommendation or approval of a physician. (See People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1444–1445; People v. Galambos (2002) 104 Cal.App.4th 1147, 1151–1152.) Defendant acknowledges that in People v. Bergen (2008) 166 Cal.App.4th 161, 164 (Bergen), the court concluded, to the contrary, that when “the method used to extract the marijuana resin was by means of a chemical such as butane, section 11379.6(a) applies over the more general statute punishing marijuana cultivation, harvesting or processing. (§ 11358.)” He nevertheless argues that Bergen was “wrongly decided, because using butane to process concentrated cannabis is not ‘chemical extraction, ’ the operative phrase in Health and Safety Code section 11379.6.”
Subdivision (d) of section 11362.5 provides: “Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.”
Without reaching the merits of defendant’s contention or examining the reasoning of Bergen, we find that the issue has been waived. Defendant’s no contest plea severely limited the issues that he may present in this appeal. (People v. Johnson (2009) 47 Cal.4th 668, 677.)
We realize that in Bergen the issue of the availability of a medical marijuana defense to a charge of violation of section 11379.6 was also presented following entry of the defendant’s “plea of no contest to manufacturing concentrated cannabis” using butane to extract the plant resin. (Bergen, supra, 166 Cal.App.4th 161, 164.) However, for whatever reason the court in Bergen was neither presented with nor chose to examine the appealability of the issue following entry of the plea.
“ ‘ “It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.” [Citations.]’ [Citation.]” (People v. Hunter (2002) 100 Cal.App.4th 37, 40.) “ ‘A defendant who has pleaded guilty or nolo contendere to a charge in the superior court, and who seeks to take an appeal from a judgment of conviction entered thereon’ must fully comply with section 1237.5 and rule 8.304(b) of the California Rules of Court, which require that the defendant secure a certificate of probable cause in order to challenge the validity of the plea.... [¶]...’ ” (People v. Puente (2008) 165 Cal.App.4th 1143, 1149, quoting People v. Vargas (2007) 148 Cal.App.4th 644, 651.) “Section 1237.5 states broadly that ‘[n]o 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, italics added.)” (People v. Johnson, supra, 47 Cal.4th 668, 676.)
Rule 8.304(b) provides “(1) Except as provided in (4), to appeal from a superior court judgment after a plea of guilty or nolo contendere or after an admission of probation violation, the defendant must file in that superior court – with the notice of appeal required by (a) – the statement required by Penal Code section 1237.5 for issuance of a certificate of probable cause. [¶] (2) Within 20 days after the defendant files a statement under (1), the superior court must sign and file either a certificate of probable cause or an order denying the certificate. [¶] (3) If the defendant does not file the statement required by (1) or if the superior court denies a certificate of probable cause, the superior court clerk must mark the notice of appeal ‘Inoperative, ’ notify the defendant, and send a copy of the marked notice of appeal to the district appellate project. [¶] (4) The defendant need not comply with (1) if the notice of appeal states that the appeal is based on: [¶] (A) The denial of a motion to suppress evidence under Penal Code section 1538.5; or [¶] (B) Grounds that arose after entry of the plea and do not affect the plea’s validity. [¶] (5) If the defendant’s notice of appeal contains a statement under (4), the reviewing court will not consider any issue affecting the validity of the plea unless the defendant also complies with (1).”
Defendant obtained a certificate of probable cause, so under California Rules of Court, rule 8.304(b) he is entitled to obtain review of the validity of the plea and the plea proceedings in this appeal. (People v. Mendez (1999) 19 Cal.4th 1084, 1088.) Certificate issues encompass matters that attack the validity of the plea, or present “questions going to the legality of the proceedings” that resulted in the plea. (People v. Hodges (2009) 174 Cal.App.4th 1096, 1104; People v. Williams (2007) 156 Cal.App.4th 898, 910.) In addition, review may be taken of any “postplea claims, including sentencing issues, that do not challenge the validity of the plea.” (People v. Cuevas (2008) 44 Cal.4th 374, 379; see also People v. Buttram (2003) 30 Cal.4th 773, 781.)
“ ‘ “Obtaining a certificate of probable cause [however] does not make cognizable those issues which have been waived by a plea of guilty.” ’ [Citation.]” (People v. Hunter, supra, 100 Cal.App.4th 37, 41–42.) “[F]iling a certificate cannot expand the scope of review to include a noncognizable issue.” (People v. Hoffard (1995) 10 Cal.4th 1170, 1178.) “A guilty plea ‘ “concedes that the prosecution possesses legally admissible evidence sufficient to prove defendant’s guilt beyond a reasonable doubt.” [Citation.] Thus, a guilty plea waives any right to raise questions regarding the evidence, including its sufficiency or admissibility....’ [Citation.]” (People v. Thurman (2007) 157 Cal.App.4th 36, 43.) “ ‘A guilty plea also waives any irregularity in the proceedings which would not preclude a conviction. [Citation.] Thus irregularities which could be cured, or which would not preclude subsequent proceedings to establish guilt, are waived and may not be asserted on appeal after a guilty plea. [Citation.] In other words, by pleading guilty the defendant admits that he did that which he is accused of doing and he thereby obviates the procedural necessity of establishing that he committed the crime charged. In short, a guilty plea “admits all matters essential to the conviction.” [Citation.] A defendant thereafter can raise only those questions which go to the power of the state to try him despite his guilt. In other words, in the language of the statute, defendant can only raise “grounds going to the legality of the proceedings.” ’ [Citations.]” (People v. Robinson (1997) 56 Cal.App.4th 363, 369.)
To determine whether an issue is appealable following a plea, we examine “ ‘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.]” (People v. Buttram, supra, 30 Cal.4th 773, 781; see also People v. Cuevas, supra, 44 Cal.4th 374, 381; People v. Ribero (1971) 4 Cal.3d 55, 63.) Here, the essence of defendant’s contention is that he was improperly charged under section 11379.6 rather than section 11358, and as a result was prohibited from presenting evidence to support a defense. The substance of the issue he has presented implicates his guilt or innocence of the charged offense and the admissibility of evidence offered to prove or defend it, which was waived and may not be presented following his plea and admission that legally admissible evidence exists to prove his guilt beyond a reasonable doubt, even if the claim of evidentiary error is based on purported constitutional violations. (People v. Egbert (1997) 59 Cal.App.4th 503, 509; People v. Whitfield (1996) 46 Cal.App.4th 947, 959; People v. Gonzalez (1993) 13 Cal.App.4th 707, 715–716.)
Defendant challenges the prosecution’s charging decision and the trial court’s ruling on the admissibility of proffered defense evidence, both of which occurred before he entered his plea. The United States Supreme Court has emphasized “that a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann [v. Richardson (1970) 397 U.S. 759].” (United States v. Benson (9th Cir. 1978) 579 F.2d 508, 511; see also People v. Turner (1985) 171 Cal.App.3d 116, 126.) In this appeal defendant has not claimed that his plea was involuntary or otherwise invalid. The recitation in defendant’s request for the certificate of probable cause specifies that he entered his plea due to the trial court’s ruling on the medical marijuana defense, but not that the plea was involuntary. Defendant is seeking a review of the trial court’s evidentiary ruling and with it admissibility of the evidence that provides the factual basis for his plea, not a review of the legality of the proceedings that resulted in his plea. (See People v. Hunter, supra, 100 Cal.App.4th 37, 42; People v. Gonzalez, supra, 13 Cal.App.4th 707, 715.)
Although defendant does not present any claim of ineffective assistance of counsel in this appeal, any such claim would also be foreclosed to the extent it relates to the admissibility or sufficiency of the evidence to establish the charged crime. (See People v. Hunter, supra, 100 Cal.App.4th 37, 42; People v. Stubbs (1998) 61 Cal.App.4th 243, 244–245.)
Neither the certificate of probable cause nor any agreement of the parties to authorize the appeal, assuming there was one, entitles defendant to obtain review of an issue that has been waived by his plea. (See People v. Alanis (2008) 158 Cal.App.4th 1467, 1473; People v. Marlin (2004) 124 Cal.App.4th 559, 566–567; People v. Lovings (2004) 118 Cal.App.4th 1305, 1311; People v. Collins (2004) 115 Cal.App.4th 137, 149.) “An issue which is not cognizable on appeal following a guilty plea cannot be made cognizable by agreement of the parties or by the issuance of a certificate of probable cause.” (People v. Thurman, supra, 157 Cal.App.4th 36, 43; see also People v. Alanis, supra, at p. 1473.) We find nothing in the record of the plea proceedings that suggests either the prosecution or the trial court promised defendant he would be entitled to review of the exclusion of the medical marijuana defense evidence following the plea. And even if defendant received assurance that the issue was cognizable on appeal, his sole remedy would be to move to withdraw his plea. (Thurman, supra, at p. 42.) Any promise to expand the statutory grounds for an appeal is not enforceable. (Ibid.) We repeat the fundamental rule that “the right to appeal is wholly statutory and a judgment or order is not appealable unless it is expressly made so by statute.” (People v. Hopkins (2009) 171 Cal.App.4th 305, 308.) The question of appealability “ ‘ “goes to our jurisdiction” ’ ” to decide the issues presented on appeal. (People v. Miller (2006) 145 Cal.App.4th 206, 212, quoting Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 436.)
We observe that if defendant had been promised as part of the plea bargain that the issue would be preserved for review on appeal, the appropriate remedy would be to remand the case to the trial court to grant him the opportunity to withdraw his plea, if he elects to do so. (People v. Navarro (2006) 138 Cal.App.4th 146, 156, fn. 4; People v. Garrido (2005) 127 Cal.App.4th 359, 366; People v. Burns (1993) 20 Cal.App.4th 1266, 1274.) We reiterate that no agreement of that sort is suggested in the record. The court merely agreed to sign the certificate of probable cause as requested by defense counsel. We also note that defendant has not sought to withdraw his plea either in the trial court or in this appeal.
Defendant has failed to present any issues that may be reviewed in this court following his no contest plea. We must therefore dismiss the appeal without proceeding to the merits. (See People v. Panizzon (1996) 13 Cal.4th 68, 74; People v. Puente, supra, 165 Cal.App.4th 1143, 1150; People v. Navarro (2008) 161 Cal.App.4th 1100, 1105; People v. Richardson (2007) 156 Cal.App.4th 574, 596; People v. Superior Court (Manuel G.) (2002) 104 Cal.App.4th 915, 924.)
In light of our conclusion, we deny defendant’s motion to take judicial notice of information that relates to whether manufacturing of concentrated cannabis through the use of butane is physical rather than chemical extraction.
Accordingly, the appeal is dismissed.
We also deny defendant’s Petition for Writ of Habeas Corpus in A127080 by separate order filed this date.
We concur: Marchiano, P.J., Banke, J.