APPEAL from a judgment of the Superior Court of Fresno County. Martin Suits and Brent Bramer, Commissioners, and Jon N. Kapetan, Judge.*fn1 (Super. Ct. No. CF04100514)
The opinion of the court was delivered by: Franson, J.
CERTIFIED FOR PUBLICATION
Appellant Patrick Disney Miller appeals the trial court's denial of
his motion to vacate his plea and modify his conviction from a felony
to a misdemeanor. Miller was charged in an August 2004 complaint with
unlawful possession of diazepam (Valium), as a felony under Health and
Safety Code section 11350, subdivision (a) (section 11350(a)),*fn2
driving under the influence (DUI), as well as other
offenses. Diazepam possession is at most a misdemeanor pursuant to
section 11375. In early 2005, appellant pled no contest to the
diazepam possession charge as a felony, as well as the misdemeanor
DUI, and received three years of formal probation, which he
successfully completed in early 2009. He raised no objection to his
plea and conviction until April 2010, when he collaterally attacked
his plea and conviction by filing the motion at issue. Although we
agree there was error in charging and accepting the plea to diazepam
possession as a felony, for reasons of public policy, we conclude
appellant is estopped from vacating his plea and modifying his
conviction, by his consent to the plea agreement. We affirm the
FACTUAL AND PROCEDURAL BACKGROUND
According to police reports of the incident, in the late morning of July 14, 2004, appellant was caught driving 121 miles per hour on Interstate 5 north of El Dorado Avenue, in western Fresno County. He admitted to police he had taken Valium and Vicodin (hydrocodone) pills earlier in the morning and the police also detected the odor of burnt marijuana, although appellant denied smoking any marijuana. Police administered several field sobriety tests and determined appellant was under the influence and unable to safely operate his car. Police then placed appellant under arrest. Appellant then admitted he had smoked marijuana in addition to taking the pills.
Police searched appellant's car and found 102 pills of Valium, 169 pills of Vicodin, over an ounce of marijuana, and other drug paraphernalia. Toxicology reports of a blood sample taken approximately three hours after getting pulled over indicated appellant had Valium and marijuana in his system that morning. When asked about the pills by the police, appellant told them he bought them in Tijuana, Mexico, and smuggled them across the border. He admitted he had no prescription for the pills and only used a couple pills a day.
A felony complaint was filed in August 2004, charging appellant with five counts: Count I was "POSSESSION OF A CONTROLLED SUBSTANCE, in violation of HEALTH AND SAFETY CODE SECTION 11350(a), a felony, was committed by Patrick Miller, who did unlawfully have in his/her possession a controlled substance, to wit, Diazepam (Valium)." The other counts were: felony possession of hydrocodone bitartrate (Vicodin), in violation of section 11350(a) (count 2); misdemeanor driving under the influence of alcohol or drugs, in violation of Vehicle Code section 23152, subdivision (a), with a further allegation that appellant was driving "more than 30 miles per hour over the speed limit on a freeway or more than 20 miles per hour over the speed limit on any other street or highway" (count 3); misdemeanor being under the influence of a controlled substance, in violation of section 11550, subdivision (a) (count 4); and misdemeanor possession of more than 28.5 grams of marijuana, in violation of section 11357, subdivision (c) (count 5).
In February 2005, appellant entered into a plea agreement where he would plead no contest to "Count 1 H&S 11350(a)" and count 3 (DUI). The remaining counts were dismissed. The terms of the plea agreement were set forth on a "FELONY ADVISEMENT, WAIVER OF RIGHTS, AND PLEA FORM." As outlined on the plea form, the maximum sentence he could receive as a result of his plea was three years two months in prison, and up to 48 months parole. The plea form also indicated another possible consequence of his plea may include registration, ostensibly as a narcotics offender. Appellant's counsel reviewed the terms of the plea agreement with him and concurred in the pleas. At the end of the plea form was the court order, signed by the trial court, which stated in pertinent part: "The Court finds that the defendant's plea(s) and admission(s) are freely and voluntarily made with an understanding of the nature and consequences thereof, and that there is a factual basis for the plea(s)."
The probation department recommended formal probation. Appellant was sentenced in April 2005. Defense counsel suggested appellant be permitted to attend a specific comprehensive drug treatment program in Tarzana, California, in lieu of any time in custody, be ordered to see a therapist, and be placed on formal probation for three years. The trial court agreed, found appellant a suitable candidate for probation, suspended imposition of judgment for three years, placed appellant on formal probation for the duration, and also ordered he perform 250 hours of community service in lieu of serving 29 days in custody. Prior to sentencing, appellant was advised of his duty to register as a narcotics offender under section 11590, use of the conviction in any later prosecutions, disclosure of the conviction in any job application for public employment or licensing, and prohibition against possessing any firearms. Probation supervision was transferred to Los Angeles County, where appellant resided.
In 2006, appellant moved to modify his probation conditions to be less restrictive and noted he suffered from a blood clot in his leg and cervical spine disease. The court eliminated the community service hours requirement because of his medical conditions.
After successfully completing his probation term in 2008, appellant petitioned the court to set aside his plea and dismiss the complaint pursuant to Penal Code section 1203.4, subdivision (a). Included with the petition was acknowledgment that appellant was advised that terminating probation would not absolve him of the obligation to disclose his conviction in certain circumstances, and to refrain from possessing or controlling a firearm, in accordance with Penal Code section 1203.4, subdivision (a). The trial court granted the petition in February 2009.
In April 2010, appellant filed a motion to vacate his plea and modify his conviction, on the grounds that a felony conviction for unlawful possession of diazepam was outside the trial court's subject matter jurisdiction, since at most this crime was a misdemeanor. Although the trial court agreed a mistake had been made, it denied the motion on grounds that equitable estoppel barred appellant from vacating his conviction. The trial court commented that appellant had received the benefit of a plea bargain in light of the fact that there was another felony available to the People to prosecute him, possession of Vicodin, which was ...