Filed 6/17/14 P. v. Rabon CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057295

v.                                                                       (Super.Ct.No. RIF1201502)

SHETIKA ANN RABON,                                                       OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez,

Judge. Dismissed.

         James R. Bostwick, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Peter Quon, Jr., and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and

Respondent.




                                                             1
       Defendant and appellant Shetika Ann Rabon appeals after a guilty plea to offenses

arising out of an alcohol-related motor vehicle accident, which killed another motorist.

She argues that her convictions in counts 2 and 3 should be dismissed as lesser included

offenses to her conviction in count 1. She also contends that she is entitled to additional

presentence custody conduct credits, and to a reduction in some assessed fees, if counts 2

and 3 are dismissed. The issue as to counts 2 and 3, whether defendant can be convicted

of lesser included offenses, is not cognizable on this appeal, because defendant never

sought a certificate of probable cause as to that issue. Because defendant has not raised a

proper and timely challenge to the validity of her convictions in counts 2 and 3, there is

no basis to modify the fees assessed as to each convicted count. The appeal is dismissed.

                        FACTS AND PROCEDURAL HISTORY

       In March 2011, defendant was driving her car on a highway in Riverside County.

Defendant was under the influence of alcohol at the time, with a measured blood alcohol

level of approximately 0.16 percent. She drove her car across double yellow centerlines,

and struck an oncoming vehicle driven by Wilfredo Garcia. Garcia was killed as a result

of the collision.

       Defendant was charged in a felony complaint with vehicular manslaughter while

driving under the influence of alcohol (Pen. Code, § 191.5, subd. (b), Veh. Code,

§§ 23152, 23153) (count 1), and with a great bodily injury enhancement (Pen. Code,

§§ 1192.7, 1192.8). In count 2, the complaint also charged defendant with driving under

the influence, causing death or bodily injury (Veh. Code, § 23153, subd. (a)), and in



                                             2
count 3 with driving with a blood alcohol level over 0.08 percent, and causing death or

bodily injury (Veh. Code, § 23153, subd. (b)). The complaint alleged, with respect to

counts 2 and 3, that defendant had personally inflicted great bodily injury or death on the

victim (Pen. Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)(8)).

       In open court, defendant pleaded guilty to all three counts, and admitted the

special allegations with respect to counts 2 and 3. The trial court struck the special

allegation with respect to count 1 on motion of the prosecutor. Defendant raised the

point, however, that counts 2 and 3 were necessarily included offenses to the charge in

count 1, and argued that she could not be convicted of all three. Indeed, the plea

agreement itself had indicated as much. After some argument on the issue, defense

counsel asked the trial court to determine, at the sentencing hearing, whether the charges

in counts 2 and 3 should be dismissed.

       At sentencing, the trial court imposed a prison term of two years on count 1. The

court imposed, but stayed (Pen. Code, § 654), prison sentences of two years each as to

counts 2 and 3. The trial court did strike the great bodily injury enhancements as to

counts 2 and 3.




                                             3
       The court awarded defendant credit for eight days of actual presentence custody,

plus one day of conduct credit under Penal Code section 2933.1. The court further

imposed a booking fee of $450.34, a court operation assessment fee of $120 ($40 per

convicted charge) and a criminal conviction assessment fee of $90 ($30 per convicted

charge).1 The court ordered victim restitution in the amount of $12,000.

       Defendant filed a timely notice of appeal.

                                       ANALYSIS

 I. The Convictions in Counts 2 and 3 Were Lesser Included Offenses to the Charge in

 Count 1, But Defendant Failed to Apply for a Certificate of Probable Cause to Review

                                         the Issue

       Multiple convictions of greater and necessarily included lesser offenses are not

permitted. (People v. Pearson (1986) 42 Cal.3d 351, 355.) Defendant maintained below,

during the plea proceedings, that the offenses in counts 2 and 3 were lesser included

offenses to the charge in count 1.

       In fact, the plea agreement defendant signed contains an advisement that she “will

enter a guilty plea to the following charges and enhancements: CT 1—191.5 (b) (dismiss

GBI allegation per 12022.7(g)) [¶] CTS 2 & 3 are lesser included offenses.”




       1 In her opening brief, defendant argued that the booking fee imposed by the trial
court was improper. In her reply brief, defendant concedes the propriety of the booking
fee. (People v. McCullough (2013) 56 Cal.4th 589.)



                                            4
         In oral proceedings, however, the following discussion took place:

         “THE COURT: . . . [I]t’s a plea to the Court, and it’s going to be Counts 1 and 2

and 3. Okay.

         “[DEFENSE COUNSEL]: Well, Your Honor, that’s the issue that we discussed in

chambers. Counts 2 and 3 are necessarily included lesser offenses. There’s case law on

point. She can’t be convicted of all three. And so what we wanted to do was plead to

Count 1 today.

         “THE COURT: Yes.

         “[DEFENSE COUNSEL]: Sentencing is going to be October 9th. And we can

write our sentencing memorandums at that point in time.

         “THE COURT: Okay. Well, I agree on Counts 2 and 3, they are 654 to each

other.

         “[DEFENSE COUNSEL]: Correct.

         “THE COURT: And—but you can plead guilty, you just can’t be punished for

both.

         “[DEFENSE COUNSEL]: Actually, Your Honor, there is an issue with being

convicted of both a 191.5 and the 23153s because they are lesser includeds. There is new

case law on that.

         “THE COURT: Right. And I’m pretty sure I agree with you there too. But I just

don’t—I think you can plead—be convicted. I just don’t think you can be punished. But

if you think they can’t even be convicted, I need to look at a case or something.



                                              5
       “[THE PROSECUTOR]: There is a split of authority. If we can discuss that issue

at sentencing, that would be great.”

       The court then proceeded to accept guilty pleas as to all three counts and set the

sentencing hearing.

       Defendant filed a sentencing memorandum, arguing that the offenses in counts 2

and 3 were lesser included offenses to the charge in count 1. She argued, “[f]or the

purposes of determining the propriety of multiple convictions, an offense is necessarily

included in another offense if the crimes are defined in such a way as to make it

impossible to commit the greater offense without also committing the lesser offense.”

(Citing People v. Pearson, supra, 42 Cal.3d 351, 355.) She argued that, “[w]hen the

focus of the analysis is directed at PC § 191.5, rather than manslaughter in general, it

becomes apparent that VC § 12153(a) is also necessarily included in PC § 191.5, since

one who injures a person while driving under the influence commits a violation of VC

[§] 23153, and if that person dies from that injury a violation of PC § 191.5 has

occurred.” (Citing People v. Miranda (1994) 21 Cal.App.4th 1464, 1466 (Miranda).)

Defendant also relied on People v. Binkerd (2007) 155 Cal.App.4th 1143 (Binkerd) for

the proposition that a defendant cannot be convicted of both vehicular manslaughter and

driving under the influence, “since both offenses require[d] proof the defendant was

driving under the influence of alcohol when she violated the law, crossing the double

yellow [center] lines. The defendant could not commit a violation of count 1 without




                                             6
injuring that same victim, as charged in count 2.” (Citing Binkerd, supra, 155

Cal.App.4th 1143 at p. 1148.)

       Alternatively, defendant argued that, at the least, she could be punished only for

the vehicular manslaughter crime, and the sentences for the other offenses should be

stayed under Penal Code section 654.

       The People’s sentencing memorandum argued that the defendant in In re Pope

(2010) 50 Cal.4th 777 (Pope) pleaded guilty to gross vehicular manslaughter while

intoxicated (Pen. Code, § 191.5, subd. (a)), as well as both driving under the influence of

drugs or alcohol, causing injury (Veh. Code, § 23153, subd. (a)) and driving with an

unlawful blood alcohol level, causing injury (Veh. Code, § 23153, subd. (b)). The

defendant also admitted enhancement allegations that the Vehicle Code offenses caused

great bodily injury. (Pen. Code, § 12022.7, subd. (a).) The primary issue presented in

Pope was whether the conduct custody credits were properly calculated. The prosecutor

below, however, relied on Pope to argue that “the court in Pope would not have engaged

in a determination of the appropriateness of the good time [custody] credits awarded to

[the] defendant . . . . The Supreme Court would never have reached the question of

credits in the Pope case if they agreed with the Binkerd and the Miranda courts’ holding.

Instead, the court would have been forced to reject the plea outright due to duplicative

and unlawful convictions of necessarily included offenses, and would never have reached

the credits determination as it would have been an outright unlawful sentence. The

second reason the Pope court’s ruling is significant is because it is . . . a recent decision



                                               7
by the California Supreme Court and thus is unquestionably binding on this court.

Consequently, the People request that the defendant be sentenced on all counts where she

suffered a conviction.”

       At the sentencing hearing, defense counsel raised the issue again: “Actually, Your

Honor, there’s going to be an issue because there’s a third issue that we do need to

resolve regarding the lesser includeds, whether you are going [to] rule they are lesser

includeds because that will affect the credits.

       “THE COURT: Right. There are two lesser included offenses. Well, just one

really, 23152(a) with a 12202.7.

       “[DEFENSE COUNSEL]: Correct, Your Honor.

       “THE COURT: And the other one’s a 23153(b) with a 12022.7. Those are just

the same crimes looking at them in different ways.

       “Yes, it’s a lesser included offense—and actually I found a case that addresses that

issue. And in that case the court was told to strike the GBI and to punish the person for

the greater, which is the 192.5. And that’s what we’re doing here. And so the—on the

lesser count—that’s the 23152(a). On that one, she’s sentenced to the midterm two years,

but pursuant to Section 654, it’s stayed because it’s the same conduct. And the 12022.7

is stricken. Same thing for Count 3 . . . the 23152[, subdivision] (b). That one—again

it’s the midterm of two years, but it’s stayed pursuant to 654, meaning that it’s the same

conduct that created all of these crimes. And the 12022.7 GBI is stricken. Okay. So

that’s the sentence.”



                                              8
       The court appeared on the one hand to accept that the charges in counts 2 and 3

were lesser included offenses to the charge in count 1, but nevertheless proceeded to

impose (and stay) sentences on each of them. Defense counsel objected: “And just for

the record, I would simply like to note, as I stated in my brief regarding the lesser

includeds, I don’t believe that she can be sentenced under 654. I believe the conviction

actually has to be reversed and the great bodily injury stricken. So I do want to note that

for the record. . . . [¶] . . . [¶] So we are objecting to a sentence on the lesser included,

because I don’t believe we get there once she’s sentenced on the greater offense.”

       In determining whether one offense is a necessarily included lesser offense to

another offense, the California courts apply two general tests, the “elements test” and the

“accusatory pleading test.” When a defendant has been convicted of two charged

offenses, and it is asserted that one is a lesser included offense to the other, we look

solely to the statutory elements test. (People v. Reed (2006) 38 Cal.4th 1224, 1229

(Reed).) “‘Under the elements test, if the statutory elements of the greater offense

include all of the statutory elements of the lesser offense, the latter is necessarily included

in the former.’ ([Reed, supra, 38 Cal.4th] at p. 1227.) In other words, ‘“[i]f a crime

cannot be committed without also necessarily committing a lesser offense, the latter is a

lesser included offense within the former.”’ (Ibid., quoting People v. Lopez (1998) 19

Cal.4th 282, 288 [79 Cal.Rptr.2d 195, 965 P.2d 713].)” (People v. Sanders (2012) 55

Cal.4th 731, 737.)




                                               9
       Penal Code section 191.5, subdivision (b) provides: “Vehicular manslaughter

while intoxicated is the unlawful killing of a human being without malice aforethought,

in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or

23153 of the Vehicle Code, and the killing was either the proximate result of the

commission of an unlawful act, not amounting to a felony, but without gross negligence,

or the proximate result of the commission of a lawful act that might produce death, in an

unlawful manner, but without gross negligence.”

       Vehicle Code section 23153, subdivision (a), provides: “It is unlawful for any

person, while under the influence of any alcoholic beverage or drug, or under the

combined influence of any alcoholic beverage and drug, to drive a vehicle and

concurrently do any act forbidden by law, or neglect any duty imposed by law in driving

the vehicle, which act or neglect proximately causes bodily injury to any person other

than the driver.” Vehicle Code section 23153, subdivision (b), provides: “It is unlawful

for any person, while having 0.08 percent or more, by weight, of alcohol in his or her

blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any

duty imposed by law in driving the vehicle, which act or neglect proximately causes

bodily injury to any person other than the driver.”2


       2  Vehicle Code section 23153, subdivisions (a) and (b) as provided in the version
of the statute effective until January 1, 2014. As of January 1, 2014, Vehicle Code
former section 23153 is repealed, and a new version becomes effective. (See Stats. 2012,
ch. 753, § 5 (AB 2552), effective January 1, 2013, operative January 1, 2014.)
        Vehicle Code section 23153, as effective on January 1, 2014, provides in
subdivisions (a) and (b):
                                                                [footnote continued on next page]


                                            10
        Notably, violation of Vehicle Code section 23153 (presumably, either under

Veh. Code, § 23153, subds. (a) or (b)) is a part of the definition of vehicular

manslaughter under Penal Code section 191.5, subdivision (b). When the conviction of

vehicular manslaughter under Penal Code section 191.5, subdivision (b) is based on a

single act or event, which is found to violate Vehicle Code section 23153 subdivision (a)

or subdivision (b) (or both), the conviction for violation of Vehicle Code section 23153,

subdivision (a) or subdivision (b) is an element of the greater offense, and the Vehicle

Code violations are then also necessarily included lesser offenses to the greater (vehicular

manslaughter) offense.




[footnote continued from previous page]
       “(a) It is unlawful for a person, while under the influence of any alcoholic
beverage to drive a vehicle and concurrently do any act forbidden by law, or neglect any
duty imposed by law in driving the vehicle, which act or neglect proximately causes
bodily injury to any person other than the driver.
       “(b) It is unlawful for a person, while having 0.08 percent or more, by weight, of
alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by
law, or neglect any duty imposed by law in driving the vehicle, which act or neglect
proximately causes bodily injury to any person other than the driver.
       “In any prosecution under this subdivision, it is a rebuttable presumption that the
person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of
driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or
her blood at the time of the performance of a chemical test within three hours after
driving.”
       The difference in the two versions of Vehicle Code section 23153, subdivisions (a)
and (b) lies in the rebuttable presumption provision in subdivision (b).



                                             11
       On appeal, the People have abandoned the thesis, argued below, that the Vehicle

Code violations were not necessarily included offenses. The People have conceded that

Vehicle Code section 23153, subdivisions (a) and (b), are lesser included offenses to

Penal Code section 191.5, subdivision (b). (Citing Binkerd, supra, 155 Cal.App.4th at

pp. 1147-1150; Miranda, supra, 21 Cal.App.4th at pp. 1466-1468.)3

       Instead, the People argue that defendant is barred from raising the issue on appeal,

first, because she failed to obtain a certificate of probable cause; second, because she

waived the issue in accepting the plea deal; and, third, because her argument represents

an impermissible effort to improve her plea agreement on appeal.

       Taking the issues in inverse order, we reject the contention that the argument on

appeal is an impermissible effort to improve defendant’s plea bargain on appeal. (Citing

People v. Hester (2000) 22 Cal.4th 290 (Hester), and In re Giovani M. (2000) 81

Cal.App.4th 1061 (Giovani M.).) In Hester, supra, 22 Cal.4th 290, the defendant pleaded

no contest to five substantive counts and an allegation of personal use of a weapon, in

exchange for a stipulated four-year prison term. The court sentenced defendant to the

four-year term as agreed, and imposed (improperly) concurrent sentences on the

remaining counts. On appeal, the defendant argued that the sentences on the additional

counts were unauthorized, because they should have been stayed pursuant to Penal Code


       3 The People argued below that the California Supreme Court in Pope, supra, 50
Cal.4th 777, had impliedly overruled Binkerd and Miranda on the issue, even though that
issue had not been squarely presented in Pope. The People do not renew that argument
on appeal.


                                             12
section 654. (Hester, supra, 22 Cal.4th at pp. 293-294.) The California Supreme Court

rejected the claim, even though the defendant’s argument was in substance correct, that

the additional sentences were unauthorized and should have been stayed. The reviewing

court deemed itself unable to reverse the sentences, because, “[w]here the defendants

have pleaded guilty in return for a specified sentence, appellate courts will not find error

even though the trial court acted in excess of jurisdiction in reaching that figure, so long

as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is

that defendants who have received the benefit of their bargain should not be allowed to

trifle with the courts by attempting to better the bargain through the appellate process.”

(Id. at p. 295.)

       In Giovani M., supra, 81 Cal.App.4th 1061, the Court of Appeal applied the

Hester rationale in the context of a bargained-for conviction on two charges, one of

which was a lesser included offense to the other. Pursuant to a negotiated agreement, a

minor agreed to admit two counts alleged in the petition, in exchange for a maximum

commitment term of five years two months; other more serious charges were dismissed.

On appeal, the minor argued that his admission of one of the charges should be vacated

or set aside, because it was a necessarily lesser included offense to the other admitted

charge. However, the court found that, “when the minor chose to accept the bargain with

the juvenile court in order to avoid a longer maximum period of confinement, the minor

waived any right to claim that the court was precluded from sustaining the petition on

count 3 even if it could be viewed as an act in excess of jurisdiction for the court to



                                             13
sustain count 3.” (Id. at p. 1065, citing Hester.) The court repeated the notion, spelled

out in Hester, that binding the minor to his bargain, even when the trial court may have

acted in excess of its jurisdiction, was “necessary because a person who has received the

benefit of their bargain should not be allowed to ‘trifle with the courts’ by attempting to

better the bargain through the appellate process.” (Ibid.)

       In Giovani M., “if the minor was successful in having his admission to count 3

vacated, the entire arrangement under which counts 2 and 3 were admitted and counts 1

and 4 were dismissed would no longer be viable. Upon remand, the entire matter

including all counts and special allegations would once again be before the juvenile court

and the minor would once again be potentially subject to a longer period of custody than

he originally bargained for.” (Giovani M., supra, 81 Cal.App.4th at p. 1065, fn. 3.)

Accepting the minor’s argument on appeal would render the entire bargain untenable.

Moreover, the minor had “obtain[ed] a substantial benefit in maximum confinement time,

and the dismissal of a potential strike,” so that he should not then be allowed to “‘trifle

with the courts’ by trying to receive even a better bargain in the appellate court.” (Id. at

p. 1065.) Even more importantly, the appellate court rejected the contention that one of

the pleaded offenses was a necessarily lesser included offense to the other. (Id. at

pp. 1065-1066.)




                                             14
       Here, in contrast to Hester and to Giovani M., defendant did not agree as part of

her bargain to plead guilty to counts 2 and 3. The plea agreement she signed specified

that she would plead only to count 1, precisely because counts 2 and 3 were lesser

included offenses. The trial court expressly agreed with defendant that the offenses were

lesser included offenses, but believed, erroneously, that defendant could be required to

plead to all charges, including the lesser included offenses; the court took the view that a

defendant could be convicted of both greater and lesser offenses, but merely could not be

punished for both. Under compulsion of the trial court’s legal error, defendant was

required to enter pleas to all three counts, in spite of her written plea agreement to the

contrary. Even so, she entered guilty pleas to all three counts with the specific proviso

that the issue would be reserved for and decided at the sentencing hearing, after briefing

by the parties.

       In these circumstances, defendant is hardly “trifl[ing] with the courts” to “better

[her] bargain” on appeal. Rather, the trial court “trifle[d] with” defendant and wrongfully

refused to honor the bargain defendant had made. Generally, “a plea agreement is

interpreted according to the same rules as other contracts . . . .” (People v. Toscano

(2004) 124 Cal.App.4th 340, 344; accord, People v. Vargas (2001) 91 Cal.App.4th 506,

533.) “It is settled that ‘when a plea rests in any significant degree on a promise or

agreement of the prosecutor, so that it can be said to be part of the inducement or

consideration, such promise must be fulfilled.’ (Santobello v. New York (1971) 404 U.S.

257, 262 [30 L.Ed.2d 427, 92 S.Ct. 495].) ‘The [United States] Supreme Court has thus



                                              15
recognized that due process applies not only to the procedure of accepting the plea

[citation], but that the requirements of due process attach also to implementation of the

bargain itself. It necessarily follows that violation of the bargain by an officer of the state

raises a constitutional right to some remedy.’ (People v. Mancheno (1982) 32 Cal.3d

855, 860 [187 Cal.Rptr. 441, 654 P.2d 211]; accord, People v. Walker (1991) 54 Cal.3d

1013, 1024 [1 Cal.Rptr.2d 902, 819 P.2d 861] [‘When a guilty 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.’].)” (People v. Paredes (2008) 160 Cal.App.4th 496, 507.) Here, there was

not a plea bargain between defendant and the prosecution, but defendant nevertheless

agreed to plead guilty only to count 1, she asserted at all times—in the written plea

agreement, by objection at the time the court took the plea, by reserving the issue of the

lesser included offenses for decision at the sentencing hearing, by written briefing in

advance of the sentencing hearing, and by argument at the sentencing hearing itself—that

the plea to the greater offense rendered unlawful any conviction on the lesser included

offenses. The trial court, as an arm of the judicial branch, was the state agency party to

the agreement with defendant. The trial court agreed with defendant that the offenses in

counts 2 and 3 were lesser included offenses to the charge in count 1, but insisted,

contrary to law, that defendant had to plead guilty to these additional offenses. The court

was charged with the duty to know, and to fairly apply, the law; instead, the court altered

the bargain defendant had made, to achieve a result that was beyond the court’s power.



                                              16
Defendant here is not trying to better her bargain on appeal; she seeks to restore the terms

of the bargain she actually made.

       Defendant also did not waive the issue by “accepting” a “plea deal.” The trial

court maintained, notwithstanding defendant’s written agreement to plead to count 1, that

it could require defendant to be convicted on all three counts, both the greater offense and

the two lesser included offenses. This was clear legal error. At the time of actually

taking the pleas, defendant acted under compulsion of the trial court’s insistence that she

enter guilty pleas to all three counts, but she expressly reserved the issue for decision at

the time of the sentencing hearing, after the parties had had the opportunity to submit

written authorities to the court. The court agreed. In fact, the court acknowledged that

counts 2 and 3 were lesser included offenses, but mistakenly believed defendant could be

convicted of, but not sentenced for, both. The court stated, “[b]ut if you think they can’t

even be convicted, I need to look at a case or something.” Effectively, defendant made a

conditional plea: the pleas to the lesser included offenses were made only to acquiesce in

the court’s insistence on proceeding in that manner, subject to the court’s correction of its

error once it had reviewed the authorities stating that an accused may not be convicted of

both a greater and a lesser included offense. As it happened, the court failed to make the

correction, despite the clear law on the issue. Defendant objected clearly at every stage

of the proceedings; the issue has not been waived or forfeited on the ground of failure to

object. (See People v. Scott (1978) 21 Cal.3d 284, 290 [“In a criminal case, the objection




                                              17
will be deemed preserved if, despite inadequate phrasing, the record shows that the court

understood the issue presented.”].)

       Having cleared two of three fences, however, defendant’s claim falls fatally at the

third: she did not obtain a certificate of probable cause. A certificate of probable cause is

required when an appeal is taken after a plea of guilty or nolo contendere, and the issue or

ground of appeal goes to the validity of the plea. Under California Rules of Court, rule

8.304(b)(4), however, “(4) The defendant need not comply with (1) 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.”

       Even though the trial court considered the issue—whether defendant could be

convicted of both greater and lesser included offenses—at the sentencing hearing, and

thus its final decision occurred “after [defendant’s initial] entry of the plea,” there can be

no question that the issue is not merely a matter of sentencing or post-plea occurrences,

but fundamentally attacks the validity of the pleas themselves, as to counts 2 and 3.

Defendant was therefore required to seek and obtain a certificate of probable cause.

       California Rules of Court, rule 8.304 (formerly rule 31) provides in relevant part:

“(a) . . . [¶] (1) To appeal from a judgment or an appealable order of the superior court

in a felony case—other than a judgment imposing a sentence of death—the defendant or

the People must file a notice of appeal in that superior court. To appeal after a plea of

guilty or nolo contendere or after an admission of probation violation, the defendant must



                                              18
also comply with (b).” (Cal. Rules of Court, rule 8.304(a)(1).) California Rules of Court,

rule 8.304(b) states: “(b) . . . [¶] (1) Except as provided in (4), to appeal from a

superior court judgment after a plea of guilty or nolo contendere or after an admission of

probation violation, the defendant must file in that superior court—with the notice of

appeal required by (a)—the statement required by Penal Code section 1237.5 for issuance

of a certificate of probable cause.

       “(2) Within 20 days after the defendant files a statement under (1), the superior

court must sign and file either a certificate of probable cause or an order denying the

certificate.

       “(3) If the defendant does not file the statement required by (1) or if the superior

court denies a certificate of probable cause, the superior court clerk must mark the notice

of appeal ‘Inoperative,’ notify the defendant, and send a copy of the marked notice of

appeal to the district appellate project.

       “(4) The defendant need not comply with (1) 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.




                                             19
         “(5) If the defendant's notice of appeal contains a statement under (4), the

reviewing court will not consider any issue affecting the validity of the plea unless the

defendant also complies with (1).”

         In People v. Mendez (1999) 19 Cal.4th 1084 (Mendez), the California Supreme

Court held (under the former rule, rule 31) that the application for a certificate of

probable cause must be completed in a full and timely fashion. Because a notice of

appeal must be timely filed within 60 days after judgment, and because the trial court

must act on an application for a certificate of probable cause within 20 days after the

statement requesting a certificate has been filed, the outside time limit for seeking or

obtaining a certificate of probable cause is a maximum of 80 days. (Id. at pp. 1095-

1096.)

         Had defendant here timely applied for, and been denied, a certificate of probable

cause, she could have sought review of any alleged erroneous denial by writ. However,

she patently failed to seek a certificate of probable cause, timely or otherwise, even

though the root of the issue she raised is the validity of her guilty pleas to counts 2 and 3.

         In accordance with Mendez, supra, 19 Cal.4th 1084, and the requirements of strict

compliance with Penal Code section 1237.5, we are without jurisdiction to review the

issue raised in the appeal. (Mendez, supra, 19 Cal.4th at p. 1099 [“[T]he defendant may

not obtain review of certificate issues unless he has complied with section 1237.5 and

rule 31(d), first paragraph, fully, and, specifically, in a timely fashion—that is to say,

unless he has done what they require, how they require, and when they require. Plainly,



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he has not complied with them fully unless he has complied with them in a timely

fashion. For, as indicated, their demands extend beyond what and how to when. If he has

complied only ‘substantially,’ he has not complied sufficiently; and if he has not

complied sufficiently, he has not complied at all.”].)

       Because defendant failed to obtain a certificate of probable cause, and because the

essence of her claim undermines the validity of the convictions and pleas on counts 2 and

3, we are without jurisdiction to hear the matter as to this issue. (See People v. Panizzon

(1996) 13 Cal.4th 68, 89, fn. 15.) Accordingly, we must order the appeal dismissed.4

       Our conclusion is strengthened by this court’s recent decision in People v. Zuniga

(Apr. 28, 2014, E057444) __ Cal.App.4th __ [Fourth Dist., Div. Two] in which we held

that the failure to obtain a certificate of probable cause barred a challenge to the factual

basis for a no contest plea.




       4  Defendant did raise an issue—fees imposed at sentencing—that ordinarily are
non-certificate issues, which may be raised and heard on appeal in the absence of a
certificate of probable cause. However, in this instance, defendant’s challenge to the
court operation fees and assessment fees is dependent upon her primary argument, that
the convictions on counts 2 and 3 were not valid. Under these circumstances, the failure
to preserve the certificate issue effectively defeats the non-certificate sentencing (fees)
issue.


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                                       DISPOSITION

       Defendant failed to preserve her primary issue for review on appeal because she

did not apply for a certificate of probable cause. Her non-certificate issue was dependent

upon review of the certificate issue; the failure to preserve the one, defeats the other.

Because of the failure to seek a certificate of probable cause, the issue(s) raised are not

cognizable on appeal. The appeal is dismissed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                 MCKINSTER
                                                                                              J.
We concur:


HOLLENHORST
          Acting P. J.


CODRINGTON
                           J.




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