Filed 11/13/15 P. v. Grayson CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A144610
v.
ANTHONY AGUILAR GRAYSON, (Lake County
Super. Ct. No. CR937669)
Defendant and Appellant.
Defendant Anthony Aguilar Grayson appeals the judgment sentencing him to a
term of two years eight months in prison consistent with the terms of his negotiated no
contest plea to one count of possession for sale of methamphetamine with two prior
prison term enhancements. He contends the trial court erred in failing to strike one of the
prior prison term enhancements after defendant successfully applied to have the
underlying prior conviction reduced to a misdemeanor under Penal Code section 1170.18,
subdivision (f),1 which was enacted as part of Proposition 47 on the November 2004
ballot. Because defendant negotiated for a specific sentence, his appeal constitutes an
attack on the validity of his plea, for which a certificate of probable cause is required
under section 1237.5. Defendant’s failure to obtain a certificate of probable cause
forecloses appellate review of his claim.
1
All statutory references are to the Penal Code unless otherwise noted.
1
Background
On December 8, 2014, pursuant to a plea bargain with negotiated disposition,
defendant pled no contest to one felony count in violation of Health and Safety Code
section 11378, and he admitted two prison term enhancements within the meaning of
section 667.5, subdivision (b). As part of his plea agreement, defendant was promised a
prison sentence of two years eight months consecutive to a four-year four-month sentence
imposed for an unrelated Yolo County conviction.
On March 16, 2015, the trial court sentenced defendant to the term specified in the
plea agreement. The court imposed an eight-month term on the possession charge and
one-year enhancements for each of the prior prison terms. The court denied defendant’s
motion to strike one of the prison term enhancements. Defendant timely filed a notice of
appeal.
Discussion
Defendant contends the court erred in denying his motion to strike the prior prison
term enhancement. He argues that the enhancement under section 667.5. subdivision (b)
applies only if the prior conviction was a felony and that after entry of his plea in the
present case, but before sentencing, his conviction in the prior case2 was reduced from a
felony to a misdemeanor under the provisions of section 1170.18.
The one-year enhancement under section 667.5, subdivision (b) applies only to
prior felony convictions.3 (People v. Tenner (1993) 6 Cal.4th 559, 563 [“Imposition of a
sentence enhancement under Penal Code section 667.5 requires proof that the defendant:
(1) was previously convicted of a felony; (2) was imprisoned as a result of that
2
A 2013 conviction for the violation of section 496, subdivision (a) in Mendocino
County case No. SCUKCR-120023454003.
3
Section 667.5, subdivision (b) provides, in relevant part: “[W]here the new offense is
any felony for which a prison sentence or a sentence of imprisonment in a county jail
under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and
consecutive to any other sentence therefor, the court shall impose a one-year term for
each prior separate prison term or county jail term imposed under subdivision (h) of
Section 1170 or when sentence is not suspended for any felony.”
2
conviction; (3) completed that term of imprisonment; and (4) did not remain free for five
years of both prison custody and the commission of a new offense resulting in a felony
conviction.”].) Subdivision (f) of section 1170.18 provides that a person who has
completed a prison term on a felony conviction that would have been a misdemeanor had
Proposition 47 been in effect at the time of the conviction may file an application to have
the prior judgment of conviction reclassified as a misdemeanor. Subdivision (k) of
section 1170.18 provides, in relevant part, that “[a]ny felony conviction that is . . .
designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor
for all purposes.” (Italics added.) Defendant argues that because his prior conviction is
now a misdemeanor, it does not support imposition of a one-year sentence enhancement
under section 667.5, subdivision (b) so that the court erred in refusing to strike the
enhancement.
In People v. Diaz (2015) 238 Cal.App.4th 1323, 1332, the court held that a motion
to strike an enhancement under section 667.5, subdivision (b) was premature because in
order for defendant’s prior conviction “to ‘be considered a misdemeanor for all purposes
[except firearm rights]’ (§ 1170.18, subd. (k)), which is the necessary predicate of his
contention that his section 667.5, subdivision (b) enhancement must be stricken, he must
file an application under section 1170.18, subdivision (f) to have the offense designated
as a misdemeanor in the superior court of conviction.” Here, while defendant successfully
had his prior conviction reduced to a misdemeanor under section 1170.18, he failed to
obtain a certificate of probable cause for an appeal from the judgment in the present case,
which bars consideration of this issue on appeal. (§ 1237.5, subd. (b); People v. Shelton
(2006) 37 Cal.4th 759, 766 [“[A] defendant may not appeal ‘from a judgment of
conviction upon a plea of guilty or nolo contendere’ unless the defendant has applied to
the trial court for, and the trial court has executed and filed, ‘a certificate of probable
cause for such appeal.’ ”].)
Defendant attempts to avoid the requirement for a certificate of probable cause by
casting his sentence as unauthorized or as involving “sentencing issues, that do not
challenge the validity of the plea.” However, defendant’s challenge to his sentence
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constitutes a challenge to the validity of his plea because the stipulated aggregate
sentence of two years four months was an integral part of his plea agreement. (People v.
Hester (2000) 22 Cal.4th 290, 295 [“Where the defendants have pleaded guilty in return
for a specified sentence, appellate courts will not find error even though the trial court
acted in excess of jurisdiction in reaching that figure, so long as the trial court did not
lack fundamental jurisdiction.”]; People v. Johnson (2009) 47 Cal.4th 668, 678 [“Even
when a defendant purports to challenge only the sentence imposed, a certificate of
probable cause is required if the challenge goes to an aspect of the sentence to which the
defendant agreed as an integral part of a plea agreement.”].)
Defendant argues that he is excused from the probable cause requirement because
section 1170.18 was enacted as part of Proposition 47 “[a]fter appellant’s plea, but prior
to sentencing.” Whether or not those facts, if true, would excuse the absence of a
certificate of probable cause, his facts are simply incorrect. The voters enacted
Proposition 47 on November 4, 2014, and the law went into effect the next day. (People
v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) The felony complaint was filed in this
case on November 21, 2014, and defendant’s plea was entered December 8, 2014.
Because defendant appeals from a judgment based on his plea of no contest and he
failed to obtain a certificate of probable cause, the appeal must be dismissed. (§ 1237.5;
People v. Mendez (1999) 19 Cal.4th 1084, 1096-1097.)
Disposition
The appeal is dismissed.
_________________________
Pollak, J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
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