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.
                                   -1-
                                            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.
                                -2-
         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


                                                   -3-
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



                                        -4-
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.
                                -5-
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;

                                              -6-
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

                                           -7-
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

                                                  -8-
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



                                        -9-
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.)
                               -10-
             __________________________________
             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




               -11-
