Filed 5/22/15 P. v. Belton CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C074917

         v.                                                                      (Super. Ct. No. 13F04095)

CECIL BELTON,

                   Defendant and Appellant.


         Defendant Cecil Belton entered a plea of no contest to failing to register annually
as a sex offender. (Pen. Code, §§ 290.012, 290.018.)1 In entering his plea, defendant
reserved the right to contest on appeal the requirement that he register as a sex offender.
The trial court assured defendant he could do so and agreed to issue a certificate of
probable cause. The court suspended imposition of sentence and granted defendant
probation for a term of five years.




1        Undesignated statutory references are to the Penal Code.

                                                             1
       Defendant appeals. The trial court granted defendant’s request for a certificate of
probable cause. (§ 1237.5.) Defendant contends the sex offender registration
requirement as applied to him violates ex post facto principles.
       We requested supplemental briefing on “whether the trial court’s assurance that it
would issue a certificate of probable cause that would allow defendant to appeal the issue
of the requirement of sex offender registration was an improper inducement for
defendant’s plea which entitles defendant to an opportunity to withdraw his plea.” (See
correspondence, letter dated June 3, 2014) Having received briefing on the issue, we
conclude remand is required to allow defendant an opportunity to withdraw his plea.
                                          FACTS
       In 1983, defendant was convicted of felony sexual battery. (Former § 243.4, subd.
(a); Stats. 1982, ch. 1111, § 1, p. 4024.) At the time, mandatory sex offender registration
was not required for his offense because it was not listed in former section 290 (Stats.
1979, ch. 944, § 8, pp. 3254-3255). Effective January 1995, section 290 was amended to
add sexual battery under section 243.4 as an offense requiring mandatory registration.
(Stats. 1994, ch. 867, § 2.7, pp. 4389-4390.) The amendment applies retroactively: “The
registration provisions of the Act are applicable to every person described in the Act,
without regard to when his or her crime or crimes were committed or his or her duty to
register pursuant to the Act arose, and to every offense described in the Act, regardless of
when it was committed.” (§ 290.023.)
       The one-count information charged defendant with committing a felony violation
of failing to register “[o]n or about and between May 15, 2013, and June 30, 3013”
having previously been convicted in 1983 in California of a felony violation of
section 243.4, “and thereby being a person required to register under Section 290, did
willfully violate a registration requirement of Section 290 in that the defendant failed to
register annually within five working days of the defendant’s birthday . . . .” (Italics
added.)

                                              2
       At the entry of plea hearing, defense counsel stated the terms of the plea, that is,
defendant would enter a plea of no contest, “reserv[ing] the right to appeal the issue of
the legal requirement that [defendant] register pursuant to Section 290” based upon his
1983 sexual battery conviction. The court stated defendant’s reservation would be noted
and it would grant defendant a certificate of probable cause. The prosecutor offered five
years probation with 160 days in county jail. After the prosecutor stated the factual basis
for the plea, the court queried whether defendant understood the charge. Defendant
replied, “I never understood. Because when I took this plea thirty years ago, I never had
to register.” The court explained the registration requirement applied to old convictions.
Defendant stated that if the law changed, then he should be allowed to “change [his] mind
and take back [his] plea,” he “never had a chance” to do so, and he would never have
entered his plea had he known about registration. The court commented there were no
grounds to allow defendant to withdraw his 1983 plea. Defense counsel stated, “That’s
why we’re appealing it, to change the law.” Defendant stated he understood the charge
and the terms of the deal. The court advised defendant that upon release, unless there
was a stay, defendant was required to register. Defendant stated he understood.
Defendant entered his plea of no contest to failing to register and also stated he
“disagree[d] with the law.” Immediately thereafter, the court accepted the plea and
granted probation, stating it “agree[d]” to issue a certificate of probable cause “on the
registration issue.”
       In his request for a certificate of probable cause, defendant stated he entered a plea
to failing to register but had reserved the right to appeal the registration requirement for
his 1983 sexual battery conviction, stating he believed the requirement was
unconstitutional under the state and federal constitutions as violating ex post facto
principles. The court granted defendant’s request for the certificate.




                                              3
                                         DISCUSSION
          Section 1237.5 provides: “No appeal shall be taken by the defendant from a
judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of
probation following an admission of violation, except where both of the following are
met: [¶] (a) The defendant has filed with the trial court a written statement, executed
under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or
other grounds going to the legality of the proceedings. [¶] (b) The trial court has
executed and filed a certificate of probable cause for such appeal with the clerk of the
court.”
          “Matters cognizable on appeal following a guilty [or no contest] plea are limited to
issues based on ‘reasonable constitutional, jurisdictional, or other grounds going to the
legality of the proceedings’ resulting in the plea. [Citations.] Under section 1237.5,
‘Other than search and seizure issues which are specifically made reviewable by section
1538.5, subdivision (m), all errors arising prior to entry of a guilty plea are waived,
except those which question the jurisdiction or legality of the proceedings resulting in the
plea.’ [Citations.] ‘The reason for this rule is that “a plea of guilty admits all matters
essential to the conviction.” ’ [Citations.]” (People v. LaJocies (1981) 119 Cal.App.3d
947, 956 (LaJocies), italics added.)
          As in LaJocies, defendant here does not raise any errors in the proceedings below
that resulted in his no contest plea to failing to register. (LaJocies, supra, 119
Cal.App.3d at p. 957.) Instead, defendant contends the mandatory registration
requirement (to which he has been subject since 1995 for his 1983 offense) is
unconstitutional as applied to him. However, his no contest plea “ ‘operated to remove
such issues from consideration as a plea of [no contest] admits all matters essential to the
conviction.’ [Citation.] Consequently, these issues are simply not cognizable on the
present appeal, whether or not defendant obtained a certificate of probable cause.’ ”
(LaJocies, supra, 119 Cal.App.3d at p. 957, italics added.) Even though defendant

                                               4
obtained a certificate of probable cause, defendant is barred from claiming he did not
commit the offense of failing to register because a no contest plea “waives any right to
raise questions regarding the evidence,” “constitutes an admission of every element of the
offense charged[,] constitutes a conclusive admission of guilt” and “concedes that the
prosecution possesses legally admissible evidence sufficient to prove defendant’s guilt
beyond a reasonable doubt.” (People v. Turner (1985) 171 Cal.App.3d 116, 125, italics
added.)
       Defendant asserts his constitutional challenge has been preserved because he
obtained a certificate of probable cause, relying upon People v. Forrester (2007) 156
Cal.App.4th 1021 (Forrester) and People v. Treadway (2008) 163 Cal.App.4th 689
(Treadway). Neither Forrester nor Treadway is of any assistance to defendant.
Forrester concerned increased punishment for the defendant’s current offense due to a
change in the law. The defendant challenged the enhancement of his current sentence
due to his driving under the influence priors. (Forrester, at pp. 1023-1025.) Treadway
concerned the same issue. (Treadway, at pp. 692-698.) The issue here is not
enhancement of defendant’s current sentence or increased punishment for defendant’s
current offense. (See People v. Castellanos (1999) 21 Cal.4th 785, 796 [sex offender
registration is regulatory in purpose and effect and is not punishment for purposes of ex
post facto analysis].)
       Defendant’s reliance upon People v. Borland (1996) 50 Cal.App.4th 124
(Borland) is likewise misplaced. Defendant claims Borland dismissed the appeal because
the defendant had failed to obtain a certificate of probable cause to raise an ex post facto
claim. The Borland court dismissed the appeal on several procedural grounds including
estoppel by plea, failure to object to an asserted defect in the charging date, changing his
theory on appeal, and the lack of a certificate of probable cause. (Id. at pp. 126-129.)
Borland did not discuss whether the defendant was barred from raising the issue even
assuming he had obtained a certificate of probable cause. The issue here is whether

                                              5
defendant is barred from raising the issue notwithstanding the issuance of the certificate
of probable cause. “Cases are not authority for propositions they do not consider.”
(People v. Martinez (2000) 22 Cal.4th 106, 118.) Borland is of no assistance to
defendant.    Notwithstanding the plea agreement reserved defendant’s right to challenge
the sex offender registration requirement on appeal, defendant waived, for purposes of
appeal, the very issue the parties and the trial court agreed defendant could pursue on
appeal. A trial court’s representation that an issue is appealable does not confer appellate
jurisdiction (People v. Hernandez (1992) 6 Cal.App.4th 1355, 1361) and the issuance of a
certificate of probable cause does not operate to expand the grounds upon which an
appeal may be taken. (LaJocies, supra, 119 Cal.App.3d at pp. 957-958.) The trial
court’s promise (as well as defense counsel’s and the prosecutor’s by way of omitting to
correct the error) of appellate rights was illusory. It “was improper for the trial court to
approve the negotiated plea bargain purporting to provide the otherwise illusory right of
appeal.” (People v. Lee (1980) 100 Cal.App.3d 715, 718.) Defendant’s plea reflects he
was induced by the promise he would obtain a certificate of probable cause in order to
challenge the constitutionality of the sex offender registration requirement on appeal.
“Where a [no-contest] plea . . . has been improperly induced by unenforceable promises
that issues have been preserved for appeal, the defendant . . . is entitled to an opportunity
to withdraw the plea.” (Ricki J. v. Superior Court (2005) 128 Cal.App.4th 783, 792;
People v. Truman (1992) 6 Cal.App.4th 1816, 1820-1821.) Thus, the judgment based
upon the plea must be reversed and the matter must be remanded to allow defendant an
opportunity to withdraw his plea in this case if he so chooses. (People v. DeVaughn
(1977) 18 Cal.3d 889, 896 [“judgment must be reversed because defendants’ pleas were
induced by misrepresentations of a fundamental nature”]; People v. Hollins (1993) 15
Cal.App.4th 567, 574-575 [illusory promise of appealability constituted improper
inducement for defendant’s plea].)



                                              6
                                      DISPOSITION
       The case is remanded to the trial court with instructions to allow defendant an
opportunity to withdraw his plea. If defendant does not withdraw his plea within 45 days
of issuance of the remittitur, the judgment is affirmed.



                                                           HOCH      , J.



We concur:



      HULL         , Acting P. J.



      MURRAY , J.




                                             7
