People v. Alwien ( 2018 )

Filed 10/20/17
CERTIFIED FOR PUBLICATION
IN THE APPELLATE DIVISION SUPERIOR COURT
STATE OF CALIFORNIA, COUNTY OF FRESNO
THE PEOPLE, ) Sup. Ct. Appeal No. 2623
)
Plaintiff and Respondent, ) Superior Court Case No.
) 2139667
)
v. ) OPINION
)
)
DRUMOND TYREE ALWIEN, )
)
Defendant and Appellant. )
)
)
)
)
APPEAL from a judgment of the Superior Court of Fresno
County, the Honorable James Oppliger, Judge. Affirmed.1
Attorneys and Law Firms
Daniel J. Brickey, Public Defender, attorney for
defendant/appellant Drumond Tyree Alwien.
Carl Monopoli and Galen Rutiaga, Chief Deputy District
Attorneys, attorney for plaintiff/respondent the People of the
State of California.
1
This opinion was originally issued by the court on October ___, 2017,
and certified for publication on the same date, which is within the time
that the appellate division retained jurisdiction. This opinion has been
certified for publication in the Official Reports. It is being sent to
the Fifth District Court of Appeal to assist the Court of Appeal in
deciding whether to order the case transferred to the court on the
court’s own motion under Rules 8-1000 – 8.1018.
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I.
BACKGROUND
Appellant received a grant of felony probation after he was
returned from the California Department of Corrections and
Rehabilitation (CDCR) from a diagnostic evaluation and
recommendation pursuant to Penal Code section 1203.03. He then
sought to address his pending traffic infraction cases. In the
traffic court, he claimed the prosecution of his pending traffic
cases was barred by Vehicle Code section 41500 because he had been
committed to the CDCR for a diagnostic evaluation.2 The traffic
court denied his motion to dismiss his consolidated cases, and
appellant thereafter entered a guilty plea. He timely filed a
notice of appeal.
Appellant again maintains his traffic cases should have been
dismissed under section 41500 because he received a “commitment”
to the CDCR when he was placed in a diagnostic facility.
Respondent challenges this claim arguing appellant was “placed
temporarily” in a CDCR diagnostic facility, not actually committed
to the CDCR as defined in section 41500. In their initial
briefing, both parties assumed without discussion that this matter
was appealable. We requested further briefing on the
appealability issue, given appellant’s guilty plea.
2
All further undesignated references to sections are to the
Vehicle Code unless otherwise indicated.
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Appellant maintains his case is indeed appealable,
notwithstanding his guilty plea, because his claim challenges the
jurisdiction of the court and the legality of the proceedings.
Respondent now maintains this case is not appealable and,
moreover, appellant should be estopped from challenging his
sentence. We believe the claim raised here challenges the
legality of the traffic court to proceed in light of the
prosecutorial bar in section 41500. As such, we conclude this
matter is appealable. We reject respondent’s estoppel claim.
Ultimately, we reject appellant’s contention and affirm the
judgment.
II.
DISCUSSION
A. Appealability
While a certificate of appealability (Pen. Code, § 1237.5) is
not required for misdemeanor or infraction appeals taken after a
guilty or no contest plea (In re Olsen (1986) 176 Cal.App.3rd 386,
390; People v. Castro (2012) 207 Cal.App.4th Supp. 9, 14; see Pen.
Code, § 1466, subd. (b)), post-guilty-plea misdemeanor or
infraction appeals are limited to those that raise “reasonably
constitutional, jurisdictional, or other grounds going to the
legality of the proceedings.” (People v. Egbert (1997) 59
Cal. App. 4th 503, 508 (Egbert); see In re Olsen, supra, 176
Cal.App.3rd at p. 390.) This is because “it was a settled tenet of
the common law that ‘. . . irregularities not going to the
jurisdiction or legality of the proceedings will not be reviewed’
after judgment on a guilty plea.” (In re John B. (1989) 215
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Cal.App.3rd 477, 483, quoting Stephens v. Toomey (1959) 51 Cal. 2d
864, 870.) The reason for the rule is clear – a guilty plea
“`concedes that the prosecution possesses legally admissible
evidence sufficient to prove defendant’s guilt beyond a reasonable
doubt’” (Egbert, supra, 59 Cal.App.4th at p. 508, citing People v.
Turner (1985) 171 Cal.App.3rd 116, 125), it “waives any right to
raise questions regarding the evidence, including its sufficiency
or admissibility, even if the claim of evidentiary error is based
on constitutional violations.” (Ibid.)
Moreover, because a guilty plea also waives any irregularity
in the proceedings that would not preclude subsequent proceedings
to establish guilt, they may not be asserted on appeal after a
guilty plea. (People v. Turner, supra, 171 Cal.App.3rd at p. 126.)
“In other words, by pleading guilty the defendant admits that he
did that which he is accused of doing and he thereby obviates the
procedural necessity of establishing that he committed the crime
charged . . . A defendant thereafter can raise only those
questions which go to the power of the state to try him despite
his guilt.”
(Ibid.) Here, appellant claims his prosecution should be barred
after he was sent to the CDCR for a diagnostic evaluation. In
other words, he is challenging the legality of the proceedings
after the trial court denied his motion to dismiss under section
41500. Appellant is not challenging the sufficiency of the
evidence to convict him, any procedural defects or irregularities,
or the sentenced imposed. Because appellant is raising “only
those questions which go to the power of the state to try him
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despite his guilt” (ibid.), we believe, notwithstanding his guilty
plea, this case is appealable.3
Respondent nevertheless argues appellant should be estopped
from complaining about a sentence to which he agreed. However,
appellant is not contesting his sentence. Rather, he is
challenging the ability of the state to prosecute him in the first
instance. Respondent cites People v. Ramirez (2008) 159
Cal. App. 4th 1412, to support its estoppel claim, arguing appellant
received the benefit of his plea bargain, and he should not be
heard to complain here. At no time in the traffic court did
appellant concede the state’s ability to prosecute him. To the
contrary, appellant pressed his motion to dismiss, and only after
the traffic court denied it, did he enter a guilty plea. We do not
believe appellant is “trifling” with this court to “better the
bargain through the appellate process.” (People v. Hester (2000)
22 Cal. 4th 290, 295; see People v. Palmer (2013) 58 Cal. 4th 110,
116-117.) Instead, appellant is again challenging the legality of
the proceedings in light of the traffic court’s failure to dismiss
under section 41500. We reject respondent’s estoppel argument.
B. Review Standard
We must decide, as a question of first impression, whether a
probationer “placed temporarily” in a CDCR diagnostic facility
pursuant to Penal Code section 1203.03, has received a “commitment
to the custody” of the CDCR within the meaning of section 41500.
In doing so we are tasked with interpreting the language in each
3
Because we find this case appealable as raising a question going
to the legality of the proceedings, we decline to consider whether
the trial court also lacked fundamental jurisdiction.
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statute. This inquiry involves our independent review, which
requires us to first look to the language of the statutes, mindful
that our “fundamental task” is “to ascertain the intent of the
lawmakers so as to effectuate the purpose of the statute[s].”
(People v. Pennington (2017) 3 Cal.5th 786, 795.) If the words
“appear susceptible to more than one reasonable construction,” we
look to “other indicia of legislative intent,” and the entire
statutory scheme instead of “a single word or phrase.” (Ibid.)
Moreover, if the statutory language is ambiguous, we apply other
“maxims of statutory construction,” to include: avoiding absurd
results, considering the consequences of a particular meaning –
including impact on public policy, and following express
legislative intent, if any. (People v. Spriggs (2014) 224
Cal. App. 4th 150, 154-155.)
C. Appellant Did Not Receive A Prison Commitment When He Was
Placed Temporarily In A CDCR Diagnostic Facility
Section 41500, subdivision (a), bars the prosecution of a
person for “pending” non-felony offenses arising out of the
operation of a motor vehicle “at the time of his or her commitment
to the custody” of the CDCR, the Division of Juvenile Justice
(DJJ), or to the county jail pursuant to the Criminal Justice
Realignment Act (Pen. Code, § 1170, subd. (h)). This statute “is
an exception to the rule that all criminal offenses are subject to
prosecution.” (Joseph v. Superior Court (1992) 9 Cal. App. 4th 498,
503.) The statute was originally drafted to grant a fresh start
to parolees released from prison or the Youth Authority and to
provide freedom from detainers which may impede an inmate’s
release. (People v. Lopez (2013) 218 Cal.App.4th Supp. 6, 11;
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People v. Freeman (1987) 225 Cal.App.3rd Supp. 1, 4 & fn. 2.) The
Legislature believed the rehabilitation process was aided by
eliminating interruptions due to arrest and prosecution for
certain non-felony traffic offenses. (People v. Lopez, supra, 218
Cal.App.4th at p. Supp. 11.)
Appellant maintains the statute is clear, “without any
condition or qualification” of how a person received a
“commitment” to the CDCR. He adds, the Legislature expressly
excluded alcohol-related offenses from section 41500, but did not
otherwise limit the statute’s application. He concludes if the
Legislature meant to exclude people placed temporarily in the CDCR
for a diagnostic evaluation, it would have expressly said so as it
did with alcohol-related offenses. Respondent counters that
temporary placement in a diagnostic facility before sentencing is
not a commitment to the CDCR. Respondent points to the
legislative intent in section 41500, arguing that temporary
placement in a diagnostic facility is not akin to a lengthier
prison term requiring a fresh start for the released parolee.
While section 41500 may be facially interpreted as appellant
asserts, we agree with respondent that a temporary placement in a
diagnostic facility is not a commitment to the CDCR. The statute’s
legislative history supports our conclusion that a “commitment”
means a person committed by a sentence imposed to either the CDCR
or local custody under the Criminal Justice Realignment Act. In
1972, the Legislature noted that the purpose of section 41500 is
to allow prisoners to leave state prison with a clean record.
(Sen. Amend to Assem. Bill No. 749 (1972 Reg. Sess.) Apr. 25,
1972.) Other courts have recognized this legislative purpose. (See
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People v. Lopez, supra, 218 Cal.App.4th at p. Supp. 11; People v.
Freeman, supra, 225 Cal.App.3rd at p. Supp. 4.) In 2015, the
Legislature extended application of the statute to people
committed “to a county jail pursuant to subdivision (h) of Section
1170 of the Penal Code.” (Assem. Bill No. 1156 (2015-2016 Reg.
Sess.) § 1.) A “commitment” to local custody pursuant to Penal
Code section 1170, subdivision (h), is necessarily a sentence
imposed.
In contrast, a person placed temporarily in a CDCR diagnostic
facility pursuant to Penal Code section 1203.03 is not yet
sentenced. (See Pen. Code, § 1170, subd.(b)[“In determining the
appropriate term, the court may consider the record in the case,
the probation officer’s report, other reports, including reports
received pursuant to [Penal Code s]ection 1203.03 . . .and any
further evidence introduced at the sentencing hearing.”].) The
temporary placement occurs to assist the court to determine the
proper sentence, after a consideration of all sentencing factors.
(People v. Arbuckle (1978) 22 Cal.3rd 749, 756; People v. Tang
(1997) 54 Cal. App. 4th 669, 678-679.) Because a person placed
temporarily in a diagnostic facility has not received a commitment
for a sentence imposed, we believe that person is not protected by
the prosecutorial bar in section 41500.
Moreover, a literal construction, as appellant asserts, would
not further the legislative goal behind the statute – to give
people a fresh start for rehabilitation upon release from a
lengthy term of incarceration. (People v. Lopez, supra, 218
Cal.App.4th at p. Supp. 6; People v. Freeman, supra, 225
Cal.App.3rd at p. Supp. 4.) In contrast, a person sent to a
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diagnostic facility can spend no more than 90 days in the facility
before being returned to the sentencing court. The statute enables
the trial court to order a prison-eligible defendant be “placed
temporarily” in a “diagnostic facility” for treatment and
diagnosis, if the court “concludes that a just disposition of the
case requires” such services. (Pen. Code, § 1203.03, subd. (a).)
Within 90 days, the prison director shall “cause defendant to be
observed and examined and shall forward to the court his diagnosis
and recommendation concerning the disposition of defendant’s
case.” (Pen. Code, § 1203.03, subd. (b).)
We do not believe the rehabilitative fresh start envisioned by
the Legislature for inmates released after being sentenced to a
lengthy term of incarceration was also meant for a probationer who
was placed temporarily in a diagnostic facility. We think this
the more reasonable result given the potential mischief in
interpreting the statute otherwise. For example, appellant’s
interpretation would extend application of section 41500 to
probationers, a class of people clearly not considered by the
Legislature.
Appellant nevertheless maintains that probationers returned
from a CDCR diagnostic evaluation have not been expressly excluded
from section 41500, as other alcohol-related offenders have been.
We again note that the Legislature recently extended application
of the statute to inmates sentenced to local custody under the
Criminal Justice Realignment Act (Pen. Code, § 1170, subd. (h)).
The Legislature, however, did not extend the statute’s application
to probationers, like appellant, who were returned from a 90-day
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diagnostic evaluation. Had the Legislature intended to include
probationers in section 41500, it could have clearly said so.
At oral argument appellant recognized the legislative purpose
behind section 41500 was to give inmates a rehabilitative fresh
start on release from custody. He contended he was no less
deserving of a fresh start than a CDCR or DJJ parolee. While a
fresh start is a laudable goal, it is the Legislature and not this
court who can extend section 41500 to probationers. We note under
appellant’s construction, probationers sentenced to longer jail
terms, for example 365 days, without being temporarily placed in a
CDCR diagnostic facility, would be unable to avail themselves of
section 41500. In contrast, probationers receiving much shorter
jail terms on return from a 90-day diagnostic evaluation, would
enjoy the statute’s prosecutorial bar. Certainly, a probationer
serving a longer jail term is as deserving of a fresh start, if
not more so, than a shorter-term probationer returned from a
diagnostic evaluation. We are unwilling to create this anomaly by
interpreting section 41500 as appellant contends.4
III.
DISPOSITION
The judgment is affirmed.
4
For the first time, at oral argument appellant sought to make an
equal protection argument. We are perplexed because appellant
expressly disclaimed making an equal protection argument in his
opening brief. In any event, we decline to consider this argument
and consider it forfeited for the failure to raise it in the
briefing. (People v. Freeman (1994) 8 Cal. 4th 450, 487-488, fn. 3;
People v. Harris (1985) 165 Cal.App.3rd 1246, 1256, fn. 8.)
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__________________________________
Hon. Brian Alvarez, Acting Presiding
Judge of the Appellate Division
Fresno County Superior Court
WE CONCUR:
__________________________________
Hon. Rosemary T. McGuire,
Judge
_________________________________
Hon. Gary D. Hoff,
Judge
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