THE PEOPLE, Plaintiff and Respondent, v. JOEY R. WATSON, Defendant and Appellant.

B172763

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SIX

125 Cal. App. 4th 700; 24 Cal. Rptr. 3d 576; 2004 Cal. App.

December 20, 2004, Filed


NOTICE: [***1] As modified Jan. 18, 2005. NOT CITABLE-SUPERSEDED BY GRANT OF REVIEW

SUBSEQUENT HISTORY: Time for Granting or Denying Review Extended People v. Watson, 2005 Cal. (Cal., Mar. 21, 2005)
Review granted, Depublished by People v. Watson, 27 Cal. Rptr. 3d 1, 109 P.3d 563, 2005 Cal. LEXIS 3484 (Cal., 2005)


PRIOR HISTORY: Superior Court of San Luis Obispo County, No. F340614, Barry T. LaBarbera, Judge. People v. Watson, 125 Cal. App. 4th 62, 22 Cal. Rptr. 3d 459, 2004 Cal. App. LEXIS 2184 (Cal. App. 2d Dist., 2004)

DISPOSITION: Judgment reversed.


SUMMARY: CALIFORNIA OFFICIAL REPORTS SUMMARY
The trial court entered a judgment following defendant's no contest plea to battery by a prisoner in violation of Pen. Code, § 4501.5. The trial court subsequently granted defendant's request for a certificate of probable cause. Defendant had been transferred from prison to Atascadero State Hospital (ASH) pursuant to Pen. Code, § 2684. While being evaluated, defendant "lunged" at a registered nurse in the admissions unit at ASH and struck him "about the face" one to three times. (Superior Court of San Luis Obispo County, No. F340614, Barry T. LaBarbera, Judge.)
The Court of Appeal reversed the judgment. The court held that a prisoner transferred to ASH pursuant to Pen. Code, § 2684, was not "confined in a state prison" within the meaning of Pen. Code, § 4501.5. Because it was undisputed that the battery committed by defendant occurred after he had been transferred to ASH pursuant to Pen. Code, § 2684, it was legally impossible for him to have violated Pen. Code, § 4501.5. Additionally, the court rejected the People's contention that, because defendant pleaded no contest, his claim was not cognizable on appeal. The court stated that defendant's claim of legal impossibility was cognizable on appeal where the underlying facts were undisputed, the trial court was put on notice of those facts before accepting defendant's plea, and a certificate of probable cause had been filed. (Opinion by Yegan, J., with Gilbert, P. J., and Perren, J., concurring.)

HEADNOTES: CALIFORNIA OFFICIAL REPORTS HEADNOTES

Classified to California Digest of Official Reports

(1) Criminal Law § 631--Appealable Judgments and Orders--Judgments of Conviction--After Plea of Guilty or Nolo Contendere.--Appellate Review Limited.--When a defendant pleads guilty or [*701] no contest and is convicted without a trial, only limited issues are cognizable on appeal. A guilty plea admits every element of the charged offense and constitutes a conviction, and consequently issues that concern the determination of guilt or innocence are not cognizable. Instead, appellate review is limited to issues that concern the jurisdiction of the court or the legality of the proceedings, including the constitutional validity of the plea. A certificate of probable cause cannot render reviewable a claim that is otherwise not cognizable on appeal from a guilty plea.

(2) Criminal Law § 631--Appellate Review--Appealable Judgments and Orders--Judgments of Conviction--After Plea of Guilty or Nolo Contendere--Claim of Legal Impossibility.--On appeal from a conviction after a defendant pleads guilty or no contest, if the defendant merely claims that the evidence was insufficient to support his conviction, his claim would not be cognizable on appeal. But a claim of legal impossibility is cognizable on appeal where the underlying facts are undisputed, the trial court was put on notice of those facts before accepting the defendant's plea, and a certificate of probable cause has been filed. Since a trial court's acceptance of a negotiated plea which patently includes a legally impossible admission constitutes an act in excess of its jurisdiction, the validity of such a plea is an issue cognizable on appeal if the procedural requirements of Pen. Code, § 1237.5, pertaining to the filing of a certificate of probable cause are met.

(3) Penal and Correctional Institutions § 4--Correctional Institutions--Commitment--State Hospital for Mentally Ill Persons.--Atascadero State Hospital is not included among the prisons and institutions specified in Pen. Code, § 5003.

(4) Penal and Correctional Institutions § 4--Correctional Institutions--Commitment--State Hospital for Mentally Ill Persons.--Pursuant to Pen. Code, § 2684, mentally ill persons confined in a state prison may be transferred to Atascadero State Hospital for care and treatment.

(5) Penal and Correctional Institutions § 21--Prisons and Prisoners--Offenses While in Prison--Possession of Controlled Substance--State Hospital for Mentally Ill Persons Does Not Qualify as State Prison.--Pen. Code, § 4573.6, provides that it is a felony for a person to knowingly possess a controlled substance in any state prison. Atascadero State Hospital (ASH) does not qualify as a "state prison" within the meaning of Pen. Code, § 4573.6, because inmates transferred to ASH pursuant to Pen. Code, § 2684, are no longer under the custody of the [*702] Department of Corrections. They are under the custody of ASH, which is under the jurisdiction of the Department of Mental Health. An inmate transferred to ASH pursuant to § 2684 is returned to prison only if the hospital superintendent determines the inmate has been treated to such an extent that such person will not benefit by further care and treatment in the state hospital. Accordingly, the Department of Corrections has no power to care for or control inmates after they are transferred to ASH pursuant to § 2684. Once the transfer has occurred, the superintendent of the hospital has the sole authority to determine whether the inmate should be returned to prison.

(6) Penal and Correctional Institutions § 4--Correctional Institutions--Commitment--State Hospital for Mentally Ill Persons--Department of Corrections Lacks Power to Control Inmates After Transfer.--Under Pen. Code, § 2684, inmates who are transferred to Atascadero State Hospital (ASH) are not "temporarily outside the walls or bounds of the prison" as contemplated by Pen. Code, § 4504, subd. (b). Rather, inmates are transferred to ASH for treatment, and that transfer may be permanent. Moreover, the Department of Corrections has no power to control inmates after the transfer has occurred.

(7) Administrative Law § 10--Powers and Functions of Administrative Agencies--Administrative Construction and Interpretation of Laws--Deference by the Courts.--Administrative regulations that involve an agency's interpretation of a statute are entitled to consideration and respect by the courts. But such agency interpretations are not legal or authoritative. Courts must, in short, independently judge the text of a statute. The degree of deference accorded to the agency's interpretation should be dependent in large part upon whether the agency has a comparative interpretative advantage over the courts and on whether it has arrived at the correct interpretation.

(8) Administrative Law § 10--Powers and Functions of Administrative Agencies--Administrative Construction and Interpretation of Laws--Deference by the Courts.--Regarding administrative regulations that involve an agency's interpretation of a statute, the California Department of Corrections has no special expertise or technical knowledge giving it a comparative interpretative advantage over the courts.

(9) Administrative Law § 10--Powers and Functions of Administrative Agencies--Administrative Construction and Interpretation of Laws--Deference by the Courts.--Regarding administrative regulations that involve an agency's interpretation of a statute, an appellate court does not accord deference to an interpretation that is clearly erroneous.
[*703]
(10) Penal and Correctional Institutions § 21--Prisons and Prisoners--Offenses While in Prison--Battery on Nonprisoner--State Hospital for Mentally Ill Persons Does Not Qualify as State Prison.--A prisoner transferred to Atascadero State Hospital (ASH) pursuant to Pen. Code, § 2684, is not "confined in a state prison" within the meaning of Pen. Code, § 4501.5. Therefore, the court reversed the judgment entered following defendant's no contest plea to battery by a prisoner in violation of § 4501.5. Because it was undisputed that the battery committed by defendant occurred after he had been transferred to ASH pursuant to Pen. Code, § 2684, it was legally impossible for him to have violated Pen. Code, § 4501.5.

[1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, § 57.]

COUNSEL: Linda Rush, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Deborah [***2] J. Chuang and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

JUDGES: Yegan, J., with Gilbert, P. J., and Perren, J., concurring.

OPINIONBY: YEGAN [**577]

OPINION:
YEGAN, J.--Joey R. Watson appeals from the judgment entered following his no contest plea to battery by a prisoner in violation of Penal Code section 4501.5. n1 Section 4501.5 provides that a "person confined in a state prison" is guilty of a felony if he "commits a battery upon the person of any individual [**578] who is not himself a person confined therein ... ."

n1 All statutory references are to the Penal Code.

Appellant admitted one prior serious or violent felony conviction within the meaning of California's "Three Strikes" law. (§ § 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) He was sentenced to prison for four years. The sentence was ordered to run consecutively [***3] to the prison term he was already serving.
Appellant contends that, as a matter of law, he could not have violated section 4501.5 because the battery was committed after he had been transferred from state prison to Atascadero State Hospital (ASH) pursuant to [*704] section 2684. As a result of the transfer, appellant maintains that he was no longer "confined in a state prison" within the meaning of section 4501.5. We agree and reverse.

Facts and Procedural Background
Robert Hopkins worked as a registered nurse in the admissions unit at ASH. On February 13, 2003, he was evaluating appellant, a new patient who had been transferred from prison to ASH pursuant to section 2684. Appellant "lunged at" Hopkins and struck him "about the face" one to three times.
After appellant was held to answer for violating section 4501.5, he moved to set aside the information. (§ 995.) Appellant contended that he had been committed without reasonable or probable cause because he had not been confined in [***4] a state prison when he had committed the battery. The motion was denied.
Appellant filed in this court a petition for a writ of prohibition. (§ 999a.) On September 30, 2003, we summarily denied the petition. (Watson v. Superior Court, No. B169997.)
Before pleading no contest, appellant's counsel said that appellant "will reserve the issue" whether a prisoner transferred to ASH pursuant to section 2684 is subject to section 4501.5. After taking the no contest plea, the trial court stated that, "at the time of judgment," it would indicate that appellant is entitled to "a certificate of probable cause to contest the ruling on the 995."
When the trial court sentenced appellant, it stated that he "is to be given a certificate of probable cause, to allow his appeal of the issue, regarding the application of these crimes to a 2684 prisoner ... ."
The trial court subsequently granted appellant's request for a certificate of probable cause.

Appellant's Claim Is Cognizable on Appeal
[***5] (1) [***5] Respondent contends that, because appellant pleaded no contest, his claim is not cognizable on appeal. "[W]hen a defendant pleads guilty or no contest and is convicted without a trial, only limited issues are cognizable on appeal. 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. [Citations.] Instead, appellate review is limited to issues that concern the 'jurisdiction of the court or the legality of the proceedings, including the constitutional validity of the [*705] plea.' [Citations.]" (In re Chavez (2003) 30 Cal.4th 643, 649 [134 Cal. Rptr. 2d 54, 68 P.3d 347].) "A certificate of probable cause cannot render reviewable a claim that is otherwise not cognizable on appeal from a guilty plea. [Citations.]" (People v. Collins (2004) 115 Cal.App.4th 137, 149 [8 Cal. Rptr. 3d 731].)
(2) Thus, if appellant were merely claiming that the evidence is insufficient to [**579] support his conviction, his claim would not be cognizable on appeal. (People v. Lobaugh (1987) 188 Cal. App. 3d 780, 785 [233 Cal. Rptr. 683] [***6] .) But this is not appellant's claim. Instead, he is claiming that it was legally impossible for him to have committed a battery while "confined in a state prison" (§ 4501.5) because the battery occurred after he had been transferred to ASH pursuant to section 2684. Such a claim is cognizable on appeal where, as here, the underlying facts are undisputed, the trial court was put on notice of those facts before accepting the defendant's plea, and a certificate of probable cause has been filed. "[S]ince a trial court's acceptance of a negotiated plea which patently includes a legally impossible admission constitutes an act in excess of its jurisdiction, the validity of such a plea is an issue cognizable on appeal if the procedural requirements of ... section 1237.5 [pertaining to the filing of a certificate of probable cause] are met." (People v. Soriano (1992) 4 Cal.App.4th 781, 783 [6 Cal. Rptr. 2d 138].)
In Soriano the defendant pleaded no contest to filing a " 'forged instrument, to wit, a death certificate' " in violation of section 115. [***7] (People v. Soriano, supra, 4 Cal.App.4th at p. 783.) The parties agreed that the defendant's "plea was defective because a death certificate is not an 'instrument' within the meaning of Penal Code section 115 ... [citations]." (Ibid.) The Soriano court permitted an appeal from the conviction because it was legally impossible for the defendant to have violated section 115. (Id., at pp. 784-785.)
In People v. Jerome (1984) 160 Cal. App. 3d 1087 [207 Cal. Rptr. 199], the defendant pleaded guilty to the charge of orally copulating a minor under 14 years of age. It was undisputed, however, that the victim was 15 years old, and the complaint so alleged. The appellate court concluded that, because it was legally impossible for the defendant to have committed the crime to which he had pleaded guilty, the trial court had exceeded its jurisdiction by imposing sentence for that crime. (Id., at p. 1094.) But it did not permit the defendant to raise the issue on appeal because he had failed to obtain a certificate of probable cause. Instead, it treated [***8] the appeal as a petition for writ of habeas corpus. (Id., at pp. 1094-1095.)
Unlike the defendant in Jerome, appellant obtained a certificate of probable cause. His claim of legal impossibility, therefore, is cognizable on appeal. [*706]

Appellant Was Not "Confined in a State Prison"
Appellant contends that, after his transfer to ASH pursuant to section 2684, he was not "confined in a state prison" within the meaning of section 4501.5. In interpreting the meaning of "confined in a state prison," three sections are particularly relevant: 4504, 6082, and 2684.
(3) Section 4504, subdivision (a), provides: "A person is deemed confined in a 'state prison' if he is confined in any of the prisons and institutions specified in Section 5003 by order made pursuant to law, including, but not limited to, commitments to the Department of Corrections or the Department of the Youth Authority, regardless of the purpose of such confinement and regardless [***9] of the validity of the order directing such confinement, until a judgment of a competent court setting aside such order becomes final." ASH is not included among the prisons and institutions specified in section 5003.
Section 6082 provides: "References ... to prisons refer to all facilities, camps, hospitals and institutions for the confinement, treatment, employment, training and [**580] discipline of persons in the legal custody of the Department of Corrections."
(4) Pursuant to section 2684, mentally ill persons confined in a state prison may be transferred to ASH for care and treatment. Subdivision (a) of section 2684 provides: "If, in the opinion of the Director of Corrections, the rehabilitation of any mentally ill, mentally deficient, or insane person confined in a state prison may be expedited by treatment at any one of the state hospitals under the jurisdiction of the State Department of Mental Health or the State Department of Developmental Services, the Director of Corrections, with the approval of the Board of Prison Terms for persons sentenced [***10] pursuant to subdivision (b) of Section 1168, shall certify that fact to the director of the appropriate department who shall evaluate the prisoner to determine if he or she would benefit from care and treatment in a state hospital. If the director of the appropriate department so determines, the superintendent of the hospital shall receive the prisoner and keep him or her until in the opinion of the superintendent the person has been treated to the extent that he or she will not benefit from further care and treatment in the state hospital."
(5) Our opinion in People v. Superior Court (Ortiz) (2004) 115 Cal.App.4th 995 [9 Cal. Rptr. 3d 745], is dispositive of the issue whether a prisoner transferred to ASH pursuant to section 2684 is "confined in a state prison" within the meaning of section 4501.5. In Ortiz we interpreted the meaning of "state prison" in section 4573.6, which provides that it is a felony for a person to knowingly possess a controlled substance "in any state prison [*707] ... ." We held that ASH does not qualify [***11] as a "state prison" within the meaning of section 4573.6 because inmates transferred to ASH pursuant to section 2684 are no longer under the custody of the Department of Corrections. (115 Cal.App.4th at pp. 1000-1001.) They are under the custody of ASH, which is under the jurisdiction of the Department of Mental Health. We reasoned: "An inmate transferred to ASH pursuant to [section 2684] is returned to prison only if the hospital superintendent determines the inmate 'has been treated to such an extent that such person will not benefit by further care and treatment in the state hospital ... .' (§ 2685.) [P] Accordingly, the Department of Corrections has no power to care for or control inmates after they are transferred to ASH pursuant to section 2684. Once the transfer has occurred, the superintendent of the hospital has the sole authority to determine whether the inmate should be returned to prison." (115 Cal.App.4th at p. 1001.)
Our reasoning in Ortiz applies with equal force to the interpretation [***12] of the meaning of "state prison" in section 4501.5. Respondent, however, argues that a prisoner transferred to ASH pursuant to section 2684 is "temporarily outside of the prison walls" and, therefore, is still "confined in a state prison" within the meaning of section 4501.5. Respondent relies on section 4504, subdivision (b), which provides in relevant part: "A person is deemed 'confined in' a prison although, at the time of the offense, he is temporarily outside its walls or bounds for the purpose of serving on a work detail or for the purpose of confinement in a local correctional institution pending trial or for any other purpose for which a prisoner may be allowed temporarily outside the walls or bounds of the prison ... ."
(6) Respondent's argument is without merit. We rejected the same argument in Ortiz: "[S]ection 2684 inmates who are transferred to ASH are not 'temporarily outside the walls or bounds of the prison' as contemplated by the statute. (§ 4504, subd. (b) [***13] .) Rather, inmates are transferred to ASH for treatment, and that transfer may [**581] be permanent. Moreover, the Department of Corrections has no power to control inmates after the transfer has occurred." (People v. Superior Court (Ortiz), supra, 115 Cal.App.4th at p. 1001.)

Rehearing on Department's Regulations
In a petition for rehearing, respondent asks us to consider two Department of Corrections regulations that conflict with our interpretation of sections 2684 and 4504, subdivision (b). One regulation provides, "Inmates and parolees housed in Department of Mental Health hospitals [pursuant to section 2684] remain under the jurisdiction of the department and shall not be permitted to leave the hospital grounds without the specific authorization of the director." (Cal. Admin. Code, tit. 15, § 3369.1, subd. (c).) The term [*708] "department" means the Department of Corrections, and the term "director" means the Director of the Department of Corrections. (Id., § 3000.) The other regulation provides: "When an inmate is found to require mental [***14] health care not available within these resources, but which is available in the Department of Mental Health, the case will be referred to the director for consideration of temporary transfer to that department pursuant to Penal Code section 2684." (Id., § 3360, subd. (b), italics added.) These regulations indicate that the Department of Corrections views inmates transferred to ASH pursuant to section 2684 as being "temporarily outside the walls or bounds of the prison" within the meaning of section 4504, subdivision (b).
(7) Administrative regulations that involve an agency's interpretation of a statute are " '... entitled to consideration and respect by the courts' [citation] ... ." (Bonnell v. Medical Bd. of California (2003) 31 Cal.4th 1255, 1264 [8 Cal.Rptr.3d 532, 82 P.3d 740].) But such " 'agency interpretations are not binding or ... authoritative' [citation]. 'Courts must, in short, independently judge the text of [a] statute ... .' [Citation.] ... [T]he degree of deference accorded [to the agency's interpretation] [***15] should be dependent in large part upon whether the agency has a ' "comparative interpretative advantage over the courts" ' and on whether it has arrived at the correct interpretation. [Citation.]" (Id., at pp. 1264-1265; see also Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 11-12 [78 Cal.Rptr.2d 1, 960 P.2d 1031].)
(8) Here judicial deference is unwarranted. The Department of Corrections has no special expertise or technical knowledge giving it a " ' "comparative interpretative advantage over the courts." ' " (Bonnell v. Medical Bd. of California, supra, 31 Cal.4th at p. 1265.) Furthermore, the Department of Correction's "interpretation is incorrect in light of the unambiguous language of the statute[s]. (9) We do not accord deference to an interpretation that is " 'clearly erroneous." ' [Citations.]" (Ibid.)
(10) Accordingly, a prisoner transferred to ASH pursuant to section 2684 is not "confined in a state prison" within the meaning of section 4501.5. Since it is undisputed that the battery committed [***16] by appellant occurred after he had been transferred to ASH pursuant to section 2684, it was legally impossible for him to have violated section 4501.5. [*709]

Disposition
The judgment is reversed.
Gilbert, P. J., and Perren, J., concurred.