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People v. Zamora

California Court of Appeals, Fifth District

May 12, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
ROBERT ANGEL ZAMORA, Defendant and Appellant.

         Super. Ct. No. BF159430A

         CERTIFIED FOR PARTIAL PUBLICATION[*]

         APPEAL from a judgment of the Superior Court of Kern County. Michael B. Lewis, Judge.

          Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.

          OPINION

          PEÑA, J.

         INTRODUCTION

         Among other statutes, the Safe Neighborhoods and Schools Act (Proposition 47 or the Act) amended Health and Safety Code section 11377 to provide misdemeanor or felony punishment as follows:

         “[A person] shall be punished by imprisonment in a county jail for a period of not more than one year, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 of the Penal Code if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code.” (Id., at subd. (a).)

         For defendant Robert Angel Zamora's violation of this drug possession offense, the trial court sentenced him as a felon under subdivision (h) of Penal Code section 1170[1] based on defendant's prior juvenile adjudication for sexual battery in violation of section 243.4. An adult convicted of this offense is required to register as a sex offender under section 290, subdivision (c). Defendant contends the trial court erred by treating his juvenile adjudication as a prior “conviction” in direct contravention of Welfare and Institutions Code section 203 (“An order adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a crime for any purpose …”). The Attorney General relies on Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209 (Alejandro N.), to argue the Act, in the broad sense, “applies to all aspects of juvenile proceedings” and “applies to juveniles for all purposes.” Although we agree the Act applies generally to juveniles as held in Alejandro N., we conclude the search for statutory intent in this case calls for a more narrow and limited approach, which focuses on the statutory language and settled case law interpreting this language. In turn, this approach leads us to conclude defendant's juvenile adjudication for a violation of section 243.4 is not a prior conviction as used in Health and Safety Code section 11377 and does not disqualify him from misdemeanor sentencing.

         In the unpublished portion of this opinion we reject the Attorney General's request for dismissal of the appeal due to defendant's failure to obtain a certificate of probable cause.

         We reverse the trial court's finding defendant's offense constitutes a felony instead of a misdemeanor.

         BACKGROUND

         Prior to November 5, 2014, a violation of Health and Safety Code section 11377, subdivision (a) was a “wobbler, ” meaning it could be a felony or a misdemeanor, depending upon the punishment imposed. (See § 17, subd. (a).) On November 4, 2014, voters enacted Proposition 47, which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a); People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) As a result, certain drug and theft offenses are now punished as misdemeanors, unless committed by statutorily defined ineligible offenders. (People v. Gonzales (2017) 2 Cal.5th 858, 870.)

         Proposition 47 additionally created a process by which a person who is serving a felony sentence for an offense made a misdemeanor by the Act can petition for a recall of sentence and be resentenced to a misdemeanor. If, however, service of the felony sentence is complete, that person can petition to have the felony conviction designated as a misdemeanor. (People v. Gonzales, supra, 2 Cal.5th at p. 863, fn. 4; § 1170.18, subds. (a) & (f).) These provisions do not apply, however, “to persons who have one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.” (§ 1170.18, subd. (i).)

         On March 10, 2015, a felony complaint charged defendant with possession, on or about March 9, 2015, of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a) (count 1). The complaint alleged the offense was a felony, defendant having previously suffered a conviction for an offense specified in section 667, subdivision (e)(2)(C)(iv), or for an offense requiring registration pursuant to section 290, subdivision (c), to wit, a 1999 juvenile adjudication for violation of section 243.4 (sexual battery). Count 2 of the complaint charged defendant with unlawfully identifying himself to a police officer in violation of section 148.9, subdivision (a), a misdemeanor.

         On March 23, 2015, following “extensive” unreported discussions, the trial court found defendant “not eligible for relief under section 1170.18” based on his prior offense. The court also found defendant did not have a serious or violent felony under section 667, subdivision (e), and so was eligible for felony drug probation under section 1210.1. Defendant then pled no contest to count 1 as a felony, [2] and count 2 was dismissed. Imposition of sentence was suspended, and defendant was placed on formal probation, pursuant to the provisions of section 1210.1, for three years.

         On May 12, 2015, the probation department requested defendant's postrelease community supervision (PRCS) be revoked for violation of the conditions thereof, including commission of new offenses.[3] On May 28, 2015, the probation department requested defendant's drug probation be revoked and that he be excluded from further participation in the treatment program, based on his arrest on the new nondrug-related offenses.

         On May 29, 2015, a status conference was held concerning the alleged violation of probation. Defense counsel made an oral motion to reduce defendant's current offense to a misdemeanor on the ground the alleged prior disqualifying offense was a juvenile adjudication not a conviction (citing Welf. & Inst. Code, § 203), whereas a conviction was required to disqualify defendant from misdemeanor treatment. Because defendant was not required to register under section 290, subdivision (c) based on a juvenile adjudication, counsel pointed out defendant “does not have to register.” The prosecutor opposed the request, arguing defendant “falls under 290.008 (a) which insinuates after 1985 if you go to CYA on this type offense, you have to register. [¶] … [¶] I understand local authorities no longer require him to register. … I would submit under 290 (c) where that crime appears this person is not eligible for reduction.”

         The trial court denied what it referred to as “the petition.” It reasoned that under Health and Safety Code section 11377, a person remained subject to felony punishment if he or she had one or more convictions for an offense specified in section 667, subdivision (e)(2)(C)(iv), or requiring registration under section 290, subdivision (c). The court noted section 667, subdivision (d) specified when a juvenile adjudication constituted a serious or violent felony. It found a juvenile adjudication for violating section 243.4 to be a serious or violent felony conviction for purposes of Proposition 47. Because it is listed as an offense requiring registration pursuant to section 290, subdivision (c), the court found “whether or not [defendant] has to register” to be irrelevant. Accordingly, it found defendant disqualified under Health and Safety Code section 11377 and so denied the request to reduce the current offense to a misdemeanor. The matter was then set for further hearing on the alleged probation violation, pending the outcome of defendant's new charges in another case.

         On June 3, 2015, defendant filed a notice of appeal. The notice specified the appeal was “based on the sentence or other matters occurring after the plea that do not affect the validity of the plea. (Cal. Rules of Court, rule 8.304(b).)” No request was made for a certificate of probable cause.

         DISCUSSION

         I. The Appeal Is Operative, Despite the Lack of a Probable Cause Certificate[*]

         The Attorney General contends the order denying defendant's request to reduce his current offense to a misdemeanor is not appealable, and the appeal must be dismissed, due to defendant's failure to obtain a certificate of probable cause. Under the somewhat unusual circumstances of this case, we disagree.

         Section 1237.5 requires a defendant to obtain a certificate of probable cause from the superior court in order to file an appeal from a judgment of conviction entered after a guilty or no contest plea, including an appeal challenging the validity of the plea.[4] (People v. Mendez (1999) 19 Cal.4th 1084, 1095.) However, “[n]otwithstanding the broad language of section 1237.5, it is settled that two types of issues may be raised in a guilty or nolo contendere plea appeal without issuance of 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 ...


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