Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD207333 Louis R. Hanoian, Allan J. Preckel, and David M. Szumowski, Judges.
O'ROURKE, J.
Defendant Richard Nespor appeals following a probation revocation hearing that occurred after he pleaded guilty to a single count of possessing marijuana for sale (Health & Saf. Code, § 11359; case No. SCD207333). The trial court revoked Nespor's probation in that case after he was found in possession of additional marijuana plants. He thereafter entered a guilty plea to possession under section 11357, subdivision (c) and the court placed him back on probation with modified terms. Nespor's sole contention on appeal - repeated in a related petition for writ of habeas corpus - is that his counsel provided prejudicially ineffective assistance following his initial guilty plea and during the probation revocation proceedings by failing to (1) appeal the trial court's order denying his request to modify probation to allow for marijuana ingestion; (2) affirmatively present evidence of his legal right to cultivate the marijuana plants at issue so as to make out a defense under the Compassionate Use Act of 1996 (CUA); or (3) move to continue the probation revocation hearing to present evidence of the legality of his marijuana possession. We agree with the People that Nespor's challenges are not cognizable on appeal because he did not obtain a certificate of probable cause. Accordingly, we shall dismiss the appeal.
All statutory references are to the Health & Safety Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2007, pursuant to a negotiated plea agreement, Nespor pleaded guilty to possessing marijuana for sale. On December 7, 2007, the court entered an order placing him on three years probation on specified terms and conditions, including that he not use or possess any controlled substance without a valid prescription.
In March 2008, Nespor moved under section 11362.795, subdivision (a)(1) to change conditions of his probation in part to confirm his ability to lawfully ingest marijuana for medicinal purposes. He asserted he had a valid recommendation to ingest marijuana because he suffered from migraines, a hernia and post traumatic stress disorder. In April 2008, the trial court, the Hon. David Szumowski, denied the request to confirm marijuana use. The court granted Nespor's other request to modify probation to substitute 80 hours of volunteer work at a nonprofit organization in lieu of 10 days in a public service program.
Subdivision (a) of section 11362.795 provides in part: "(1) Any criminal defendant who is eligible to use marijuana pursuant to section 11362.5 may request that the court confirm that he or she is allowed to use medical marijuana while he or she is on probation or released on bail. [¶]... [¶] (3) During the period of probation..., if a physician recommends that the probationer or defendant use medical marijuana, the probationer or defendant may request a modification of the conditions of probation... to authorize the use of medical marijuana."
In May 2008 officers found 28 marijuana plants growing at Nespor's house. Thereafter, Nespor turned himself in and in July 2008 his probation was summarily revoked and the matter set for a combined preliminary hearing and probation revocation hearing. In August 2008 Nespor was bound over for a charge of cultivating marijuana (case No. SCE281024). At the hearing on that matter, Nespor testified he had a medical marijuana recommendation from a physician issued on December 4, 2007 that did not expire until December 4, 2008. The court, the Hon. Allan J. Preckel, tentatively ruled that Nespor would be discharged under case authority in effect at that time, but changed its tentative ruling after the People argued that Nespor had not met his burden of showing medicinal use by presenting expert testimony as to the nature of his medical needs and whether the amount possessed was reasonably related to his medical needs. The court formally revoked Nespor's probation, finding based on the evidence that he had violated his probation in case No. SCD207333. Nespor asked that the court enter a plea of not guilty on his behalf and deny all allegations.
People v. Phomphakdy (2008) 165 Cal.App.4th 857, review granted October 28, 2008, S166565, review dismissed and cause remanded March 10, 2010. The California Supreme Court dismissed review in that case after issuing its decision in People v. Kelly (2010) 47 Cal.4th 1008.
In April 2009 Nespor initialed a change of plea form in case No. SCE281024 in which he pleaded guilty to possession of more than 28.5 grams of marijuana in violation of section 11357, subdivision (c). At the hearing on Nespor's change of plea, the trial court, the Hon. Louis Hanoian, took Nespor's waivers and confirmed on the record that he freely and voluntarily pleaded guilty to that charge under People v. West (1970) 3 Cal.3d 595 (West), and stipulated that the preliminary hearing transcript would serve as the basis for his plea. Judge Hanoian reiterated that Nespor's probation in case No. SCD207333 was revoked on the additional basis of his change of plea. Nespor's counsel then proceeded to move for an order granting Nespor limited immunity as to the possession charge and probation violation, on grounds the underlying conduct - possession of 12 mature plants and 16 immature trees - was not illegal. He asked that the court dismiss the information and set aside its finding as to a probation violation. Pointing out Nespor had just admitted guilt and to the illegality of that charge and that the claim was an affirmative defense that could not be brought in connection with Nespor's sentencing on his probation revocation, the court ordered Nespor back on probation under the previous terms and conditions with two modifications: that he was not to use or possess marijuana during the period of his probation, and that he serve 180 days in custody of the sheriff. The court stayed imposition of custody pending appeal.
In taking Nespor's plea, Judge Hanoian explained that as a result, Nespor would be in violation of probation: "Mr. Nespor, you are pleading guilty to Health and Safety Code section 11357[, subdivision] (c), that is unlawful possession of more than 28.5 grams of marijuana. It carries a maximum punishment of a year in jail and a $500 fine, plus penalties and assessment. There are immigration consequences if you are not a U.S. citizen. By virtue of your plea of guilty, you will be in violation of probation on any case that you are currently on probation for. Do you understand the maximum consequences of your plea? [¶] Mr. Nespor: Yes, sir. [¶] The court: Mr. Singleton, are you satisfied that the defendant understands the terms of the plea bargain and the change of plea form? [¶] Mr. Singleton: Yes, your honor."
The court and counsel engaged in lengthy discussion concerning whether Nespor should have brought his motion for limited immunity at the August 2008 combined preliminary/probation revocation hearing, or whether Nespor should raise such a defense at the time of trial. Defense counsel initially advised the court that he had misadvised his client about the effect of the West plea and asked that the plea be withdrawn. After Judge Hanoian indicated he was going to proceed to sentence Nespor based on Judge Preckel's finding as to a probation violation and revocation, counsel withdrew the motion to withdraw the plea. Defense counsel advised the court he believed he could bring the limited immunity motion at any time and that he had misadvised his client and had rendered ineffective assistance by not presenting additional evidence at the preliminary hearing or requesting a continuance of that hearing to do so. Counsel urged the court to consider the evidence Nespor presented in connection with his motion to avoid a miscarriage of justice, but the trial court responded that the evidence did not establish the amount of marijuana plants was legal, and counsel was citing case law that was not final and ultimately had been granted review. The court ultimately ruled on Nespor's limited immunity motion, finding the declarations unconvincing and ruling there was no defense as a matter of law.
Nespor filed the present appeal. He did not obtain a certificate of probable cause.
DISCUSSION
Our analysis of Nespor's appeal begins and ends with the People's contention that the appeal must be dismissed for his failure to obtain a certificate of probable cause (Pen. Code, § 1237, subd. (b)). They argue that by admitting the illegality of the offense that served as the basis for the probation revocation, Nespor essentially admitted the violation itself, and was thus required to obtain a certificate.
Nespor responds that his probation revocation did not result from his admission of any offense or act, but from Judge Hanoian's reliance on the earlier revocation of probation by Judge Preckel. He maintains he is not attacking the validity of the plea, but a contested violation of probation as the result of his counsel's ineffective representation occurring after the entry of his plea, during the initial sentencing and also at the combined preliminary/probation revocation hearing.
Penal Code section 1237.5 provides in part that "[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, 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." (Italics added.)
In general, a defendant may not appeal a judgment of conviction based on a guilty plea unless the defendant has sought and obtained a certificate of probable cause from the trial court. (Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304(b); People v. Johnson (2009) 47 Cal.4th 668, 678.) "The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas. [Citations.] The objective is to promote judicial economy 'by screening out wholly frivolous guilty [and nolo contendere] plea appeals before time and money is spent preparing the record and the briefs for consideration by the reviewing court.' " (People v. Panizzon (1996) 13 Cal.4th 68, 75-76.)
An exception to the certificate requirement exists when the defendant is challenging an error occurring at a postplea hearing to determine the degree of the crime and the penalty to be imposed, provided the error does not implicate the validity of the plea agreement. (People v. Johnson, supra, 47 Cal.4th at p. 677; Cal. Rules of Court, rule 8.304(b)(4)(B).) If the postplea error, however, implicates the validity of the plea agreement, then a certificate of probable cause is still required. (Johnson, at p. 677.) A certificate of probable cause will also be required where a defendant asserts a claim of ineffective assistance of counsel that occurred prior to a guilty plea, where his or her claim in effect challenges the propriety of the guilty plea. (People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245.)
In People v. Billetts (1979) 89 Cal.App.3d 302, the Court of Appeal applied these principles to a defendant's appeal from a probation revocation following his admission of the violation. (Id. at pp. 306-307; accord, People v. Ramirez (2008) 159 Cal.App.4th 1412, 1428, fn. 5.) The appellate court explained that Penal Code section 1237.5's inclusion of the phrase pertaining to probation revocations following an admission "reflects an apparent legislative understanding that an admission of violation of probation is tantamount to a guilty plea and that the principles which militate against the taking of an appeal from a conviction following a guilty plea (e.g., that a guilty plea amounts to an admission of every element of the offense; [citations]) operate with equal applicability to appeals from a judgment following an admission of violation of probation." (Billetts, supra, 89 Cal.App.3d at p. 306.) In Billetts, the defendant claimed, in part, that he was deprived of proper notice of a prerevocation hearing, deprived of the hearing itself, and not informed of the consequences of admitting the probation violation. (Billetts, at p. 308.) The court held that all of these issues concerned the validity of his admission of a violation of probation and were not reviewable on appeal absent a certificate of probable cause. (Ibid.) It further held the defendant's other contentions: that the sentence imposed following his probation revocation was cruel and unusual and also invalid because the court did not pronounce judgment, were cognizable without a certificate. (Ibid.)
Applying the above summarized principles, the critical question here is whether Nespor's challenges are in substance challenges to the validity of his admission to the probation violation; it is not the time or manner in which the challenges are made. (See e.g., People v. Cuevas (2008) 44 Cal.4th 374, 381; People v. Panizzon, supra, 13 Cal.4th at p. 76; People v. Emery (2006) 140 Cal.App.4th 560, 564-565.) Examining his contentions in some detail, Nespor's appeal raises three issues couched in claims of ineffective assistance of counsel: The first raises the question of whether his counsel should have filed (and provided constitutionally ineffective representation by not filing) an appeal or some other kind of appellate action from Judge Szumowski's order denying his request to modify probation to confirm his medicinal marijuana use. He argues that had defense counsel followed up with an appeal, she could have informed the trial court about case law (People v. Mower (2002) 28 Cal.4th 457 and People v. Tilehkooh (2003) 113 Cal.App.4th 1433) that analogize the use of medical marijuana under the CUA to a prescription drug. He argues counsel's "failure to appeal Judge Szumowski's decision was an obvious mistake since the judge's decision lacked any basis in fact to support his denial, was overbroad, and was completely contra to Mower and Tilekooh [sic]."
In People v. Moret (2009) 180 Cal.App.4th 839, a divided panel of the First District Court of Appeal pointed out that Tilehkooh predated the Legislature's enactment of section 11362.795, which was enacted in 2003 and became effective January 1, 2004. (Stats. 2003, ch. 875, § 2). (Moret, at p. 853, fn. 12.) The court questioned its continued validity when applied contrary to the statute's express terms. (Id., at pp. 853-854, fns. 12, 13.)
Ultimately, this claim goes to the legality of the proceedings and specifically implicates the validity of Nespor's admission, because in effect it is an argument that the failures of his counsel resulted in that admission, which was one of the bases of his probation revocation. Stated another way, Nespor in substance argues that had his counsel provided effective assistance, he would not had his probation revoked or admitted to any violation, presumably because his possession (to which he admitted guilt) would have been deemed legal under the CUA. Nespor's ineffective assistance claim is thus foreclosed by his failure to obtain a certificate of probable cause. (Accord, People v. Stubbs, supra, 61 Cal.App.4th at pp. 244-245 [certificate of probable cause was required for a claim of ineffective assistance based on counsel's failure to advise the defendant, prior to his plea, that he could challenge a search by police and seek the disclosure of a confidential informant, as the defendant's claim was effectively a challenge to the propriety of his guilty plea].)
Nespor's second and third contentions urge that his counsel should have presented evidence of his medical needs at his preliminary hearing or sought a continuance to do so upon finding that the preliminary hearing on his new charge would double as a probation revocation hearing. To demonstrate the error, he quotes his defense counsel, who stated, " '[H]ad we asked for a continuance, which we should have done, we could have presented this [Nespor's medical marijuana needs]. So all I am trying to do is prevent a miscarriage of justice. I mean, we have the evidence here to show that his conduct was legal. We have a letter from the physician, and we have an opinion from the physician, and we have an opinion from the expert; the People have nothing to refute that.' " (Italics added.) In short, Nespor argues his counsel's omissions were fatal in that he was "left... with no defenses" to the charge of possession under section 11357, subdivision (c).
We cannot characterize these claims as raising postplea issues not requiring a certificate of probable cause; that is, they do not relate to " 'proceedings held subsequent to the plea for the purpose of determining the degree of the crime and penalty to be imposed.' " (People v. Richardson (2007) 156 Cal.App.4th 574, 596, quoting People v. Panizzon, supra, 13 Cal.4th at p. 74.) The substance of Nespor's ineffective assistance claims raise issues as to the legality or illegality of Nespor's possession, and affect the legality of the proceedings in connection with his probation revocation and the violation to which he admitted. We therefore cannot address them. Nespor's appeal is dismissed.
DISPOSITION
The appeal is dismissed.
WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.