People v. Sierra

THE PEOPLE, Plaintiff and Respondent, v. CHRISTINA SIERRA, Defendant and Appellant.

E070303

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

July 31, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. RIF1600659)

OPINION

APPEAL from the Superior Court of Riverside County. Thomas E. Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Conditionally reversed with directions.

Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Matthew Mulford and Steve T. Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

On November 27, 2017, in a plea to the court, defendant and appellant Christina Sierra pleaded guilty to the "sheet" as charged and admitted all the enhancement allegations in exchange for a maximum term of nine years in state prison. Specifically, defendant pleaded guilty to causing great bodily injury while driving under the influence (Veh. Code, § 23153, subd. (e); count 1); driving a motor vehicle without a license (Veh. Code, § 12500, subd. (a); count 2); and felony child abuse (Pen. Code,¹ § 273a, subd. (a); count 3). She also admitted that in the commission of count 1, she personally inflicted great bodily injury (§ 12022.7, subds. (a) & (b)). Defendant further admitted that she had suffered one prior prison term (§ 667.5, subd. (b)). Following a sentencing hearing on February 2, 2018, the trial court sentenced defendant to nine years in state prison with 173 days of credit for time served. On April 10, 2018, defendant filed an appeal.

On appeal, defendant contends section 1001.36 applies retroactively and that the judgment must be conditionally reversed and remanded with directions to the trial court to determine whether she is eligible for a pretrial mental health diversion program under section 1001.36. The People assert that the appeal must be dismissed because defendant failed to obtain a certificate of probable cause, but that in any event, section 1001.36 does not apply retroactively. Alternatively, the People argue that defendant failed to show she is eligible for a pretrial mental health diversion program.

We conclude that defendant may raise the retroactivity issue despite the absence of a certificate of probable cause, and that section 1001.36 applies retroactively. Accordingly, we conditionally reverse the judgment and remand the matter to the trial court with directions to conduct a mental health diversion eligibility hearing pursuant to section 1001.36, enacted effective June 27, 2018. (Stats. 2018, ch. 34, § 24 (Assem. Bill No. 1810²).) If the court finds the statutory criteria are met, it may grant diversion, and if defendant successfully completes diversion, the court shall dismiss the charges. (People v. Frahs (2020) 9 Cal.5th 618 (Frahs II) [section 1001.36 applies retroactively to all judgments not final when the statute was enacted effective June 27, 2018]; People v. Weaver (2019) 36 Cal.App.5th 1103, 1117, 1121-1122 (Weaver) [same], review granted Oct. 9, 2019, S257049; People v. Hughes (2019) 39 Cal.App.5th 886, 894-895 [same], review granted Nov. 26, 2019, S258541; cf. People v. Craine (2019) 35 Cal.App.5th 744, 749, 754, 760 (Craine) [section 1001.36 applies only prospectively], review granted Sept. 11, 2019, S256671.)³ If, however, the court determines that defendant is not eligible for mental health diversion pursuant to section 1001.36, or if defendant commitsa new crime or does not successfully complete the diversion program, the judgment of conviction shall be reinstated and defendant must be resentenced.

In supplemental briefing, defendant asserts that, following the enactment of Senate Bill No. 136, we must strike the prior prison term enhancement. We agree and shall strike the prior prison term enhancement.

II

FACTUAL BACKGROUND⁴

On August 11, 2015, while driving a minivan, defendant veered off to the right and collided with a parked truck. Defendant's 15-year-old daughter was asleep in the back seat of the minivan and did not suffer any injuries. Francisco R., who was standing near the front of the truck, was hit in the accident. Francisco was rendered unconscious and had severe trauma injury to his left leg. Francisco suffered a broken left leg, a blood clot in his right shoulder, and two blood clots in his brain, which required surgeries and physical therapy.

A responding officer concluded that defendant was under the influence of narcotics at the time of the accident. Defendant admitted that she had taken methadone and clonazepam. She also failed field sobriety tests. Furthermore, defendant tested positive for morphine, benzodiazepine, and codeine. Based on the amount of each drug and the combination of drugs, a forensic pathologist and toxicologist concluded thatdefendant's ability to drive was impaired, as was her ability to maintain a straight lane and depth perception.

III

DISCUSSION

A. Lack of Certificate of Probable Cause

The People argue that defendant's appeal should be dismissed because she did not obtain a certificate of probable cause. We disagree that a certificate is required here.

Section 1237.5 provides 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 defendant has obtained from the trial court a certificate of probable cause. Despite this broad language, the Supreme Court has held there are some exceptions. The Supreme Court instructs that "'courts must look to 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.] Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5. [Citation.]'" (People v. Buttram (2003) 30 Cal.4th 773, 781-782 (Buttram); accord, People v. Panizzon (1996) 13 Cal.4th 68, 76 (Panizzon).) "The parties to a plea agreement are free to make any lawful bargain they choose, and the exact bargain they make affects whether a subsequent appeal, in substance, is an attack on the validity of the plea." (Buttram, at p. 785.)

"'When a guilty [or nolo contendere] plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.' [Citations.]" (Panizzon, supra, 13 Cal.4th at p. 80.) Ordinarily, "a challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself" (id. at p. 79) and "thus requires a certificate of probable cause. [Citation.]" (People v. Shelton (2006) 37 Cal.4th 759, 766 (Shelton).)

However, the Supreme Court has "made clear that where the terms of the plea agreement leave issues open for resolution by litigation, appellate claims arising within the scope of that litigation do not attack the validity of the plea, and thus do not require a certificate of probable cause." (Buttram, supra, 30 Cal.4th at p. 783; People v. Mendez (1999) 19 Cal.4th 1084, 1088 [certificate issues encompass matters that attack the validity of the plea, and generally do not include matters occurring after entry of the plea such as a determination of the degree of the crime or the penalty to be imposed].) Thus, postplea claims, including sentencing issues, that do not challenge the validity of the plea do not need to meet the certificate requirement. (See People v. Cuevas (2008) 44 Cal.4th 374, 379 (Cuevas); Buttram, at pp. 777, 790-791 [absent contrary provisions in the plea agreement, no certificate required to challenge court's discretionary selection of particular sentence within agreed-upon range]; Mendez, at p. 1088.) "In other words, the question is whether defendant 'seeks only to raise [an] issue[ ] reserved by the plea agreement, and as to which he did not expressly waive the right to appeal.' [Citations.]"(Cuevas, at p. 381.) For example, in Buttram, the Supreme Court held that the defendant's agreement to a maximum possible sentence did not require him to obtain a certificate of probable cause to argue on appeal that the trial court abused its discretion in deciding to impose the maximum. (Buttram, at pp. 776-777.)

Here, defendant pleaded guilty to the sheet with a maximum sentence of nine years. Her sentence was to be determined by the trial court at a later date. Defendant's plea was thus an open plea to the court, not a negotiated agreement with the People in exchange for a stipulated sentence.⁵ "An open plea is one under which the defendant is not offered any promises. [Citation.] In other words, the defendant 'plead[s] unconditionally, admitting all charges and exposing himself to the maximum possible sentence if the court later chose to impose it.'" (Cuevas, supra, 44 Cal.4th at p. 381, fn. 4, quoting Liang v. Superior Court (2002) 100 Cal.App.4th 1047, 1055-1056.) Defendant's appeal is not inconsistent with any implicit promise that she made in connection with her sentencing. Defendant neither made nor received any promises. She did not obtain any agreement on a maximum sentence, which would have implied an "understanding and belief that in its absence the trial court might lawfully have imposed a greater sentence." (Shelton, supra, 37 Cal.4th at p. 768.) Nor did she receive the benefit of any reduced maximum...