PEOPLE v. MAZURETTE (1999)

Appellant, Mary Lucia Mazurette, moved to suppress evidence under Penal Code section 1538.5.   After her motion to suppress evidence was denied, she pled no contest to possession of methamphetamine (Health & Saf.Code, § 11377) and driving with a suspended driver's license (Veh.Code, § 14601.1) and was granted a deferred entry of judgment pursuant to Penal Code section 1000.2.   She then appealed from the order denying her suppression motion.   We appointed counsel to represent her on this appeal.   After examination of the record, her appointed attorney filed a brief under People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 in which no issues were raised.

We requested briefing on whether the order denying the suppression motion is an appealable order, whether the no contest plea constitutes an appealable judgment, and whether the order deferring entry of judgment is an order appealable by the defendant.   Counsel for both parties have filed letter briefs in response to our request for supplemental briefing.   Appellant contends that the no contest plea and the orders denying suppression and granting deferred entry of judgment are appealable.   She asserts that an order granting deferred entry of judgment is sufficiently similar to an order granting probation to constitute a final judgment of conviction for purposes of appeal.   Respondent contends that a defendant may not appeal an order denying a suppression motion if the defendant pleads guilty or no contest and is subsequently granted a deferred entry of judgment, since Penal Code section 1237 does not include an order granting deferred entry of judgment as a final judgment of conviction.   For the reasons that follow, we conclude that there is no right to appeal from an order denying a motion to suppress evidence if the defendant has pled guilty or no contest and been granted deferred entry of judgment.

 The right to appeal is wholly statutory.  (People v. Callahan (1997) 54 Cal.App.4th 1419, 1422, 63 Cal.Rptr.2d 684.)   Penal Code section 1237 provides:  “An appeal may be taken by the defendant:  [¶] (a) From a final judgment of conviction except as provided in Section 1237.1 and Section 1237.5.   A sentence, an order granting probation, or the commitment of a defendant for insanity, the indeterminate commitment of a defendant as a mentally disordered sex offender, or the commitment of a defendant for controlled substance addiction shall be deemed to be a final judgment within the meaning of this section.   Upon appeal from a final judgment[,] the court may review any order denying a motion for a new trial. [¶] (b) From any order made after judgment, affecting the substantial rights of the party.”

 Penal Code section 1538.5, subdivision (m), provides in pertinent part:  “A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty.”   An appeal may be filed under Penal Code section 1538.5, subdivision (m), although a defendant has pleaded no contest rather than guilty.  (People v. West (1970) 3 Cal.3d 595, 600, 91 Cal.Rptr. 385, 477 P.2d 409.)   The defendant need not first file a certificate of probable cause under Penal Code section 1237.5.  (People v. West, supra, 3 Cal.3d at p. 600, 91 Cal.Rptr. 385, 477 P.2d 409.)

 In People v. Bagby (1977) 74 Cal.App.3d 986, 988-989, 141 Cal.Rptr. 762, Division One of the Fourth Appellate District held that “review of a pretrial order denying suppression of evidence is not available on an appeal from a diversion order since no judgment of conviction or order deemed to be a judgment of conviction exists upon which review may be predicated under Penal Code section 1538.5.”   The court pointed out that if the defendant successfully completed the diversion program, there would be no judgment of conviction.  (Id. at p. 989, 141 Cal.Rptr. 762.)   The court explained that if the defendant failed in the diversion program and was ultimately convicted, the defendant could then appeal from the judgment.   (Ibid.) For those reasons, the court ordered the appeal of the defendant in the diversion program dismissed.  (Ibid.)

 Deferred entry of judgment is a new statutory procedure that has replaced the former procedure of pretrial diversion.  (People v. Barrajas (1998) 62 Cal.App.4th 926, 928, fn. 2, 73 Cal.Rptr.2d 123.) Under Penal Code section 1000 et seq., as amended effective January 1, 1997 (Stats.1996, ch. 1132, §§ 2, 3, 4, 5, 6.5, 7), if a defendant has been charged with possession of methamphetamine or any of several other drug offenses and various conditions are met, the defendant may be granted a deferred entry of judgment and be referred to a drug rehabilitation program following the defendant's plea of guilty or no contest.   Penal Code section 1000.3 provides in part:  “If the defendant has performed satisfactorily during the period in which deferred entry of judgment was granted, at the end of that period, the criminal charge or charges shall be dismissed.”

Penal Code section 1000.4, subdivision (a), provides in part:  “Upon successful completion of a deferred entry of judgment program, the arrest upon which the judgment was deferred shall be deemed to have never occurred.   The defendant may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or granted deferred entry of judgment for the offense, except as specified in subdivision (b).   A record pertaining to an arrest resulting in successful completion of a deferred entry of judgment program shall not, without the defendant's consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.”   Penal Code section 1000.4, subdivision (b), provides:  “The defendant shall be advised that, regardless of his or her successful completion of the deferred entry of judgment program, the arrest upon which the judgment was deferred may be disclosed by the Department of Justice in response to any peace officer application request and that, notwithstanding subdivision (a), this section does not relieve him or her of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.”

In People v. Perez (1998) 68 Cal.App.4th 346, 80 Cal.Rptr.2d 188, a defendant appealed from an order granting him deferred entry of judgment following a guilty plea to possession of cocaine.   The defendant contended that, since he committed that offense while the diversion statute was still in effect, the trial court erred in granting him deferred entry of judgment rather than diversion.   In a footnote, Division One of the Fourth Appellate District held that the order was appealable because it was “equivalent to an order granting probation,” which is deemed an appealable judgment under Penal Code section 1237.  (People v. Perez, supra, 68 Cal.App.4th at p. 348, fn. 2, 80 Cal.Rptr.2d 188.) The court noted that if a defendant successfully completes diversion or a deferred entry of judgment program, the criminal charges against the defendant are dismissed.  (Id. at p. 355, fn. 5, 80 Cal.Rptr.2d 188.) The court did not cite or discuss Bagby.

In a concurring opinion in Perez, Presiding Justice Kremer stated:  “[T]he majority's analogizing probation to section 1000 diversion is inapt.   Probation has attendant punitive conditions such as imposition of custody, community service and required waiver of rights.   However, unlike probation, section 1000 diversion has no such attendant punitive elements.   Instead, section 1000 diversion constitutes a method to avoid the criminal process entirely by meeting the specified conditions of successfully completing a nonprobation department drug rehabilitation program and staying clean for the designated period.   Upon satisfying those conditions, a diverted person literally has the slate wiped clean, a situation unlike the partial relief granted to a successful probationer under section 1203.4.” ¹  (People v. Perez, supra, 68 Cal.App.4th at p. 358, 80 Cal.Rptr.2d 188.)

In People v. Superior Court (On Tai Ho ) (1974) 11 Cal.3d 59, 66, 113 Cal.Rptr. 21, 520 P.2d 405, a writ of mandate proceeding in which the sole issue was whether the prosecutor could constitutionally exercise a veto power over a trial judge's decision to order diversion, the Supreme Court stated that diversion may be viewed as a specialized form of probation.   The court explained the purpose of diversion as follows:  “First, diversion permits the courts to identify the experimental or tentative user before he becomes deeply involved with drugs, to show him the error of his ways by prompt exposure to educational and counseling programs in his own community, and to restore him to productive citizenship without the lasting stigma of a criminal conviction.   Second, reliance on this quick and inexpensive method of disposition, when appropriate, reduces the clogging of the criminal justice system by drug abuse prosecutions and thus enables the courts to devote their limited time and resources to cases requiring full criminal processing.  [Citations.]”  (Id. at pp. 61-62, 113 Cal.Rptr. 21, 520 P.2d 405, fn. omitted.)   The statutory scheme for deferred entry of judgment has the same purposes.   The Supreme Court did not consider whether an order granting diversion should be deemed an order granting probation for purposes of appeal.

We note that in People v. Wright (1975) 47 Cal.App.3d 490, 492, 120 Cal.Rptr. 899, Division One of this court held that an order granting pretrial diversion was an order appealable by the People.   In so holding, Division One relied on People v. Murphy (1969) 70 Cal.2d 109, 74 Cal.Rptr. 65, 448 P.2d 945 and concluded that an order granting diversion was analogous to a final judgment in a “ ‘special proceeding’ [citation].”  (Wright, supra, 47 Cal.App.3d at p. 492, 120 Cal.Rptr. 899.)   In People v. Murphy, supra, 70 Cal.2d 109, 74 Cal.Rptr. 65, 448 P.2d 945, the court held that an order of civil commitment under a narcotics addict rehabilitation program under Welfare and Institutions Code section 3051 was appealable because the order was deemed a final judgment in a special proceeding within the meaning of former Code of Civil Procedure section 963, subdivision 1. (People v. Murphy, supra, 70 Cal.2d at pp. 114-115, 74 Cal.Rptr. 65, 448 P.2d 945.)   In People v. Wright, supra, 47 Cal.App.3d at pages 493-494, 120 Cal.Rptr. 899, Division One held that diversion cannot be obtained after a defendant has had a trial and been convicted.   In People v. Alonzo (1989) 210 Cal.App.3d 466, 258 Cal.Rptr. 263, the People appealed an order granting postconviction diversion.   The court followed Wright, stating that Wright had held that “an order granting diversion is final for purposes of appellate review.”   (Alonzo, supra, at p. 468, 258 Cal.Rptr. 263.)   Neither Wright nor Alonzo discussed whether an order granting diversion is appealable by the defendant.

In People v. Murphy, supra, 70 Cal.2d at page 115, 74 Cal.Rptr. 65, 448 P.2d 945, the court held that the sole matter reviewable on an appeal from a civil commitment order was the propriety of the order of civil commitment.   The court explained:  “[W]hat [the defendant] could not do-as defendant has here attempted-was to use his right to appeal from the order of civil commitment as yet another vehicle to attack his criminal conviction.  [Citations.]․  [¶] At the time here relevant, moreover, such an attempted review of the judgment of conviction would necessarily have been premature:  until the defendant was returned to court and sentenced after his rejection or release from the rehabilitation program [citations], the criminal charge had not been prosecuted to a ‘final judgment of conviction’ within the meaning of the basic criminal appeal statute [citation].  [Fns. omitted.]”  (Id. at pp. 114-115, 74 Cal.Rptr. 65, 448 P.2d 945, original italics.)

The statutory scheme for deferred entry of judgment under Penal Code section 1000 et seq. has language indicating that an order granting deferred entry of judgment should not be deemed a final judgment for purposes of appeal.   Penal Code section 1000.1, subdivision (d), provides:  “A defendant's plea of guilty pursuant to this chapter shall not constitute a conviction for any purpose unless a judgment of guilty is entered pursuant to Section 1000.3.”   Penal Code section 1000.3 provides in part:  “If it appears to the prosecuting attorney, the court, or the probation department that the defendant is performing unsatisfactorily in the assigned program, or that the defendant is not benefiting from education, treatment, or rehabilitation, or that the defendant is convicted of a misdemeanor that reflects the defendant's propensity for violence, or the defendant is convicted of a felony, or the defendant has engaged in criminal conduct rendering him or her unsuitable for deferred entry of judgment, the prosecuting attorney, the court on its own, or the probation department may make a motion for entry of judgment․  [¶] If the court finds that the defendant is not performing satisfactorily in the assigned program, or that the defendant is not benefiting from education, treatment, or rehabilitation, or the court finds that the defendant has been convicted of a crime as indicated above, or that the defendant has engaged in criminal conduct rendering him or her unsuitable for deferred entry of judgment, the court shall render a finding of guilt to the charge or charges pled, enter judgment, and schedule a sentencing hearing․”

In view of the language of Penal Code section 1000.1, subdivision (d), the lack of any language in Penal Code section 1237 that an order granting deferred entry of judgment is deemed a judgment for the purpose of a defendant's appeal, and the distinction between the partial relief granted to a successful probationer and the more extensive relief granted to a defendant who successfully completes a deferred entry of judgment program, we conclude that there is no right to appeal from an order denying a motion to suppress evidence if the defendant has pled guilty or no contest and been granted deferred entry of judgment.   Under those circumstances, there is no “judgment of conviction” within the meaning of Penal Code section 1538.5, subdivision (m).

Our decision does not deny appellate review to a defendant in appellant's situation.   Before pleading guilty or no contest and entering a program of deferred entry of judgment, a defendant may obtain review of an order denying a suppression motion by petitioning for a writ of mandate or prohibition.   Penal Code section 1538.5, subdivision (i), provides that, by filing a petition for writ of mandate or prohibition within 30 days after the defendant's motion to suppress evidence is denied, the defendant may seek pretrial review of the order denying the suppression motion.²  In addition, if a defendant is granted deferred entry of judgment, does not successfully complete the deferred entry of judgment program, and is ultimately sentenced, the defendant may obtain review of the order denying the suppression motion by appealing from the judgment.

The appeal is dismissed.

FOOTNOTES

FOOTNOTE.  

1.   Penal Code section 1203.4, subdivision (a), provides in part:  “In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty;  or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty;  and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code. The probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon.   The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing.   However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed.   The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery.  [¶] Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm capable of being concealed upon the person or prevent his or her conviction under Section 12021.”

2.   Penal Code section 1538.5, subdivision (i), provides in pertinent part:  “After the special hearing is held in the superior court, any review thereafter desired by the defendant prior to trial shall be by means of an extraordinary writ of mandate or prohibition filed within 30 days after the denial of his or her motion at the special hearing.”

MALLANO*. FN* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

BOREN, P.J., and NOTT, J., concur.