Filed 4/28/14

                          CERTIFIED FOR PUBLICATION



          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                    DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                   E057444

v.                                                  (Super.Ct.No. FVI1201693)

ALEX JOE ZUNIGA,                                    OPINION

        Defendant and Appellant.




        APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata,

Judge. Dismissed.

        Beatrice C. Tillman, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marissa

Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.




                                            1
       Defendant and appellant Alex Joe Zuniga pled no contest to active participation in

a criminal street gang in violation of Penal Code section 186.22, subdivision (a),1 a strike

offense. In return, the remaining allegation was dismissed and defendant was sentenced

to a stipulated term of 16 months in state prison with credit of 354 days for time served.

       Relying on People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez), defendant

appeals on the ground that his conviction is void because there was no factual basis for

the plea as there was no evidence to show he committed the underlying offense with

another gang member. The People filed a motion to dismiss, arguing that defendant’s

claim is not cognizable on appeal because defendant did not obtain a certificate of

probable cause. The People further assert that should this court deny the motion to

dismiss, the proper remedy is to remand the matter to the trial court to allow the

prosecutor to establish a factual basis since Rodriguez was decided after the plea.

                                               I

                    FACTUAL AND PROCEDURAL BACKGROUND2

       On June 29, 2012, a victim of a residential burglary and a vehicle theft during the

burglary saw his stolen vehicle being driven down a road and called the police for

assistance. The victim followed his stolen vehicle into a gas station where he waited for

the police to arrive. When police officers arrived, the victim informed them that one of

the suspects fled on foot and the other suspect ran into the gas station. Police officers

       1   All future statutory references are to the Penal Code unless otherwise stated.

       2   The factual background is taken from the preliminary hearing.


                                               2
made contact with the female suspect inside the gas station; she was uncooperative. The

officers searched the stolen vehicle and found hospital documents in defendant’s name.

        The police officers subsequently contacted defendant’s parole officer who

informed them that defendant was wearing a GPS ankle bracelet as a condition of parole.

The officer located defendant hiding in the backseat of a parked car. Defendant did not

respond to the officers’ demands to show his hands and exit the vehicle. Officers then

broke a window of the car, unlocked the doors, forcibly pulled defendant out of the

vehicle, and arrested him.

        The officers searched the vehicle in which defendant was hiding and found a

nylon bag and a blue sunglass case. The nylon bag contained 48 plastic baggies; 40 of

them were clear and empty. One baggie contained a usable amount of

methamphetamine, and three baggies contained methamphetamine residue. Two

electronic scales and three measuring spoons were also discovered inside the nylon bag.

Two glass pipes with burnt residue were found in the blue sunglass case.

        A gang expert opined that defendant was an active member of the Perez Marbelia

7th Street criminal street gang based on defendant’s tattoos, gang cards, and admission to

being involved in the gang. The gang expert also explained that the primary purpose of

the gang was to commit drug-related offenses, such as selling drugs and transporting

drugs; and that defendant possessed the drugs for sale for the benefit of the criminal street

gang.




                                             3
       On September 6, 2012, an information was filed charging defendant with

possession of a controlled substance, to wit, methamphetamine, for sale (Health & Saf.

Code, § 11378; count 1) and active participation in a criminal street gang (§ 186.22,

subd. (a); count 2).

       On October 22, 2012, pursuant to a plea agreement, defendant pled no contest to

count 2. In exchange, the remaining count was dismissed and defendant was sentenced to

16 months in state prison with credit for time served.

       On November 6, 2012, defendant filed a notice of appeal based on the sentence or

other matters that do not affect the validity of the plea. Defendant did not obtain a

certificate of probable cause.

       On May 16, 2013, defendant’s appellate counsel filed a petition for writ of habeas

corpus, case No. E058737, requesting permission to file a late certificate of probable

cause in the trial court under In re Benoit (1973) 10 Cal.3d 72. On June 5, 2013, this

court denied defendant’s petition without prejudice.

       On August 9, 2013, the People filed a motion to dismiss the appeal arguing

defendant’s claim was not cognizable on appeal for failure to obtain a certificate of

probable cause. On September 9, 2013, this court took judicial notice of the record in

case No. E058737, and reserved its ruling on the motion to dismiss to “the panel of

justices who determine the appeal” and ordered the People to file a respondent’s brief.




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                                              II

                                       DISCUSSION

       Defendant contends that his conviction for active participation in a criminal street

gang is void and must be reversed because there was no factual basis for the plea in light

of Rodriguez, supra, 55 Cal.4th 1125, which was decided after he entered his plea. He

further argues that since he is raising a legal question, a certificate of probable cause is

not required in the instant matter.

       The People raise a threshold issue in their motion to dismiss. The People argue

that defendant is barred from challenging the factual basis for his plea because of the

absence of a certificate of probable cause under section 1237.5. We address this

threshold matter.

       Generally speaking, under section 1237.5,3 a defendant may not bring an appeal

from a judgment of conviction entered after a guilty or no contest plea, including an

appeal challenging the validity of the plea, unless he or she has first obtained from the

superior court a certificate of probable cause. (People v. Mendez (1999) 19 Cal.4th 1084,

1095 (Mendez).) As our Supreme Court has held, however: “Notwithstanding the broad


       3  Section 1237.5 specifically provides: “No appeal shall be taken by the
defendant from a judgment of conviction upon a plea of guilty or nolo
contendere . . . 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.”



                                               5
language of section 1237.5, it is settled that two types of issues may be raised in a guilty

or nolo contendere plea appeal without issuance of a certificate: (1) search and seizure

issues for which an appeal is provided under section 1538.5, subdivision (m); and

(2) issues regarding proceedings held subsequent to the plea for the purpose of

determining the degree of the crime and the penalty to be imposed. [Citations.]”

(People v. Panizzon (1996) 13 Cal.4th 68, 74-75 (Panizzon); see also Cal. Rules of

Court, rule 8.304(b).)4

       Our high court advises that the certificate requirements of section 1237.5 “should

be applied in a strict manner.” (Mendez, supra, 19 Cal.4th at p. 1098.) And the court has

strongly criticized the practice in some appellate decisions of reaching the merits of the

appeal, notwithstanding the defendant’s noncompliance with section 1237.5’s certificate

requirements. (Mendez, supra, at pp. 1097-1098 [rejecting appellate courts’ approach of

granting “dispensation” to defendant not in compliance with section 1237.5 under

rationale that defendant may seek same relief by habeas corpus petition]; Panizzon,

supra, 13 Cal.4th at p. 89, fn. 15 [“[T]he purposes behind section 1237.5 will remain vital

only if appellate courts insist on compliance with its procedures.”].) As noted in People

v. Cole (2001) 88 Cal.App.4th 850, 860, footnote 3, “strict application of section 1237.5


       4  California Rules of Court, rule 8.304(b)(4) provides that a defendant appealing
from a superior court judgment following the entry of a plea of guilty or no contest need
not comply with the certificate of probable cause requirements of section 1237.5 “. . . if
the notice of appeal states that the appeal is based on: [¶] (A) The denial of a motion to
suppress evidence under Penal Code section 1538.5; or [¶] (B) Grounds that arose after
entry of the plea and do not affect the plea’s validity.”


                                              6
works no undue hardship on defendants with potentially meritorious appeals. The

showing required to obtain a certificate is not stringent. Rather, the test applied by the

trial court is simply ‘whether the appeal is clearly frivolous and vexatious or whether it

involves an honest difference of opinion.’ [Citation.]”

       In assessing whether an appeal that purports to challenge a post-guilty plea

sentence requires a certificate of probable cause, courts examine the substance of the

appeal: “[T]he crucial issue is what the defendant is challenging, not the time or manner

in which the challenge is made.” (People v. Ribero (1971) 4 Cal.3d 55, 63, superseded

by statute on other grounds as stated in In re Chavez (2003) 30 Cal.4th 643, 656.) Thus,

for instance, in Panizzon, supra, 13 Cal.4th at pages 73 and 74, the defendant—after

having pleaded no contest as part of a plea agreement to a sentence of life with the

possibility of parole plus 12 years—appealed, claiming that the agreed-upon sentence

was disproportionate to the sentence his codefendant received and was thus

unconstitutional. The court pierced the surface of the defendant’s challenge. While the

appeal on its face did not attack the validity of the plea, the court nonetheless held that

the defendant was required to obtain a probable cause certificate because the “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; see also People v. Shelton (2006)

37 Cal.4th 759, 766.)




                                              7
       In People v. Arwood (1985) 165 Cal.App.3d 167 (Arwood), the defendant pleaded

nolo contendere to a charge of forcible rape and admitted a prior felony conviction for

assault with a deadly weapon involving personal use of the deadly weapon under

section 667, which provided for a five-year enhancement for prior serious or violent

felonies. (Arwood, supra, at p. 170.) On appeal, the defendant argued that his prior

conviction was not a serious felony within the meaning of section 667 and should be

stricken. (Arwood, supra, at p. 171.)

       The Arwood court agreed with the People that the challenge was not cognizable on

appeal absent the execution and filing of a certificate of probable cause “because the

enhancement was imposed as a result of [the defendant’s] admission of the prior serious

felony conviction, and his admission occurred before entry of the nolo contendere plea.”

(Arwood, supra, 165 Cal.App.3d at p. 171, italics omitted.) The defendant’s plea

constituted a challenge to the validity of his plea “insofar as it encompassed admission of

a prior serious felony within the meaning of section 667.” (Id. at p. 172.)

       Like Arwood, People v. Breckenridge (1992) 5 Cal.App.4th 1096 (Breckenridge),

overruled on another point in In re Chavez, supra, 30 Cal.4th at p. 657, fn. 6, addressed a

sentencing enhancement issue based on the defendant’s admission of a prior felony

conviction. (Breckenridge, supra, at p. 1098.) The defendant pleaded guilty to the

charge of lewd conduct with a child, and admitted a prior serious felony conviction for a

similar offense. The court imposed a five-year enhancement for the prior serious felony

conviction. On appeal, the defendant sought reversal of the enhancement, contending



                                             8
that his admission of the prior was invalid “due to an inadequate advisement of rights.”

(Ibid.) The defendant’s appeal did not include a certificate of probable cause. The

Breckenridge court held that because the challenge was based on a claim of “inadequate

advisement of rights,” it related back to and implicated the validity of his admission of

the prior. (Id. at p. 1098.) Accordingly, an appeal without a certificate of probable cause

was precluded under section 1237.5, and the appeal was dismissed. (Breckenridge,

supra, at p. 1098.)

       People v. Jones (1995) 33 Cal.App.4th 1087 (Jones) also followed Arwood. In

Jones, the defendant pleaded no contest to, inter alia, one count of burglary and two

counts of possession of stolen property. (Jones, supra, at p. 1088.) She appealed on the

ground that she could not lawfully be convicted of both burglary and receiving the

property stolen during the burglary. (Id. at p. 1089; § 496, subd. (a); People v. Jaramillo

(1976) 16 Cal.3d 752, 757, superseded by statute on another ground as stated in People v.

Strong (1994) 30 Cal.App.4th 366, 371-372 [Fourth Dist., Div. Two].) The Jones court

did not reach the merits of the defendant’s claim that the conviction had to be reversed or

vacated as unlawful and agreed with the People that a certificate of probable cause was

required. (Jones, supra, at p. 1091.) The court explained, “Claims regarding the

illegality of the judgment, whether on jurisdictional or other grounds, are precisely the

types of claims which are covered by Penal Code section 1237.5 and require a certificate

of probable cause.” (Id. at p. 1092.)




                                             9
       The Jones court acknowledged a contrary view expressed by the First District

Court of Appeal in two cases. In People v. Loera (1984) 159 Cal.App.3d 992, 996

(Loera), the defendant pleaded guilty to receiving stolen property and admitted that the

value of the property exceeded $25,000, which entailed a one-year sentence enhancement

under former section 12022.6.5 The defendant then challenged on appeal the imposition

of the enhancement, arguing that for several reasons, former section 12022.6,

subdivision (a), could not be used to enhance a sentence based upon a conviction for

receiving stolen property. (Loera, supra, at p. 997.) The Loera court held that the

defendant was not required to obtain a certificate of probable cause, concluding that the

defendant was challenging the sentence as being unlawful and void and was therefore

claiming “a jurisdictional defect subject to correction whenever it comes to the attention

of either a trial court or a reviewing court. [Citations.]” (Id. at p. 998.) In People v.

Corban (2006) 138 Cal.App.4th 1111 (Corban), the court considered whether a probable

cause certificate was required where the defendant, who admitted a great bodily injury

allegation as part of her plea, argued on appeal that the imposition of the enhancement

was unlawful because it was inapplicable to circumstances where child endangerment

resulted in death. (Corban, supra, at pp. 1114-1117.) The Corban court acknowledged


       5  Former section 12022.6 provided that “‘[a]ny person who takes, damages or
destroys any property in the commission or attempted commission of a felony, with the
intent to cause such taking, damage or destruction, and the loss exceeds: (a) Twenty-five
thousand dollars ($25,000), the court shall in addition and consecutive to the punishment
prescribed for the felony or attempted felony of which the defendant has been convicted
impose an additional term of one year.’” (Loera, supra, 159 Cal.App.3d at p. 999.)


                                              10
the results in Arwood, Breckenridge, and Jones, and the contrary position in Loera.

(Corban, supra, at pp. 1115-1116.) Corban distinguished Loera as addressing purely

legal arguments about the applicability of the enhancement that had “nothing to do with

the particular facts of the defendant’s case.” (Corban, supra, at p. 1116.) The Corban

court concluded that the issues in Arwood and Breckenridge were at least partially factual

as they related to the plea, whereas Corban’s case and Loera involved purely legal

arguments. (Corban, supra, at pp. 1116-1117.)

       For the reasons expressed in Jones, supra, 33 Cal.App.4th at page 1093, we

conclude that Loera is inconsistent with Arwood and Breckenridge, and we choose to

follow those cases and Jones. To the extent that Corban offers a distinction between

Loera, we note that here defendant’s challenge to the factual basis for the plea, even in

light of the Rodriguez decision, is not purely a legal argument resolvable without

reference to the particular facts presented.




                                               11
       We believe that an analysis of the cases shows that Corban’s distinction does not

hold up under scrutiny. Arwood, like Loera and Corban, involved issues of statutory

interpretation.6 In Loera, moreover, the court relied upon the principle that an

unauthorized-sentence claim is cognizable on appeal despite a lack of objection below.

(Loera, supra, 159 Cal.App.3d at p. 998.) This principle, however, is an exception to the

rule that only claims raised by the parties below may be heard on appeal. (People v. Scott

(1994) 9 Cal.4th 331, 354.) This principle cannot be employed to sidestep the additional

hurdle of section 1237.5, which is triggered by entry of a guilty or no contest plea. In

Corban and Loera as well as in Jones, Breckenridge, and Arwood, the defendants’ claims

were all directed to elements of their pleas that the defendants had freely admitted. The

claims thus challenged the validity of their pleas. We believe the better course is to

follow Arwood and Jones and require compliance with section 1237.5 in cases that are, in

substance, challenges to the validity of a guilty plea.

       In this instance, defendant contends that following the decision in Rodriguez,

supra, 55 Cal.4th 1125, which was decided on December 27, 2012, after he was

sentenced and his notice of appeal was filed, his conviction is void and must be reversed

because there was no factual basis for the plea. In Rodriguez, the Supreme Court held


       6 The defendant’s claim in Arwood required the court to determine whether the
admitted prior felony fell within the statutory definition of prior serious felonies,
requiring interpretation of section 1192.7, subdivision (c)(23). (Arwood, supra, 165
Cal.App.3d at pp. 172-173.) The court was also required to interpret the enhancement
provisions of Proposition 8. (Arwood, supra, at pp. 174-175.)



                                              12
that in order to convict a defendant of the crime of active participation in a criminal street

gang under section 186.22, subdivision (a), the prosecution must prove that the defendant

promoted, furthered, or assisted felonious criminal conduct by other members of the

gang, not just the defendant himself. Thus, when a gang member acts alone in

committing a crime, he cannot be convicted of violating the gang participation statute.

(Id. at pp. 1128, 1138-1139.) Defendant argues that there is no evidence in this case that

defendant acted with any other member of his criminal street gang and therefore there

was no factual basis for the plea.

       However, defendant’s challenge—while couched in terms of raising a legal issue

attacking only the judgment—is in substance a dispute concerning the factual basis

underlying his no contest plea. “A guilty plea admits every element of the charged

offense and constitutes a conviction [citations], and consequently issues that concern the

determination of guilt or innocence are not cognizable [on appeal]. [Citations.]” (In re

Chavez, supra, 30 Cal.4th 643, 649.)7 Thus, a guilty plea waives any right to raise

questions regarding the evidence, including its sufficiency or admissibility. (People v.

Egbert (1997) 59 Cal.App.4th 503, 509.)

       In People v. Pinon (1979) 96 Cal.App.3d 904, the defendant pled guilty to

possession of a firearm by an ex-felon (former § 12021). On appeal, the defendant


       7  We note the prosecutor and defendant’s counsel here stipulated that there was a
factual basis for the no contest plea, and the court made a finding of the existence of such
a factual basis.



                                             13
contended the plea was invalid because the record did not reflect a factual basis for his

plea, in that his prior conviction was a misdemeanor, not a felony. (Id. at pp. 907, 909.)

The defendant also asserted his counsel was incompetent for failing to recognize that fact.

(Id. at p. 909.) In rejecting the defendant’s contention, the court stated, the “defendant’s

contention that the prior conviction was a misdemeanor rather than a felony, and the

related contention that counsel was incompetent, go solely and directly to the question

whether he was in fact guilty of the charged offense. However, his plea of guilty

‘operated to remove such issues from consideration as a plea of guilty admits all matters

essential to the conviction.’ [Citations.] Consequently, these issues are simply not

cognizable on the present appeal, whether or not [the] defendant obtained a certificate of

probable cause.”8 (Id. at p. 910.)

       Based on the foregoing, we conclude that defendant’s challenge to the factual

basis for the no contest plea “is properly viewed as a challenge to the validity of the plea

itself.” (Panizzon, supra, 13 Cal.4th at p. 79.) Since defendant failed to obtain a


       8  We note that the Supreme Court in People v. Hoffard (1995) 10 Cal.4th 1170,
addressed a challenge to the legality of a guilty plea based on the trial court’s failure to
make a sufficient inquiry into the existence of a factual basis for the plea. A
determination that there is a factual basis for a guilty plea is procedurally mandated by
section 1192.5. (Hoffard, at pp. 1174, 1180-1183.) A contention that the court failed to
make a sufficient inquiry into the factual basis for the plea thus challenges the legality of
the plea and meets the criteria set forth in section 1237.5, subdivision (a), for issues
which are cognizable on appeal after a guilty plea. In contrast, a contention that the
evidence is insufficient to support the judgment does not challenge the legality of the
proceedings, but rather goes to the question of guilt or innocence. It is therefore not
cognizable on appeal after a guilty plea. (Hoffard, at pp. 1178-1179.)



                                             14
certificate of probable cause in compliance with section 1237.5, his challenge is barred.

(Jones, supra, 33 Cal.App.4th at pp. 1093-1094.)

                                             III

                                      DISPOSITION

       The appeal is dismissed for failure to obtain a certificate of probable cause.

       CERTIFIED FOR PUBLICATION

                                                                RAMIREZ
                                                                                        P. J.
We concur:



McKINSTER
                          J.



KING
                          J.




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