1

Filed 11/13/15 P. v. Grayson CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY AGUILAR GRAYSON,

Defendant and Appellant.

A144610

(Lake County

Super. Ct. No. CR937669)

Defendant Anthony Aguilar Grayson appeals the judgment sentencing him to a 

term of two years eight months in prison consistent with the terms of his negotiated no 

contest plea to one count of possession for sale of methamphetamine with two prior 

prison term enhancements. He contends the trial court erred in failing to strike one of the 

prior prison term enhancements after defendant successfully applied to have the 

underlying prior conviction reduced to a misdemeanor under Penal Code section 1170.18, 

subdivision (f),

1 which was enacted as part of Proposition 47 on the November 2004 

ballot. Because defendant negotiated for a specific sentence, his appeal constitutes an 

attack on the validity of his plea, for which a certificate of probable cause is required 

under section 1237.5. Defendant’s failure to obtain a certificate of probable cause 

forecloses appellate review of his claim.

 

1 All statutory references are to the Penal Code unless otherwise noted.
2

Background

On December 8, 2014, pursuant to a plea bargain with negotiated disposition, 

defendant pled no contest to one felony count in violation of Health and Safety Code 

section 11378, and he admitted two prison term enhancements within the meaning of 

section 667.5, subdivision (b). As part of his plea agreement, defendant was promised a 

prison sentence of two years eight months consecutive to a four-year four-month sentence 

imposed for an unrelated Yolo County conviction.

On March 16, 2015, the trial court sentenced defendant to the term specified in the 

plea agreement. The court imposed an eight-month term on the possession charge and 

one-year enhancements for each of the prior prison terms. The court denied defendant’s 

motion to strike one of the prison term enhancements. Defendant timely filed a notice of 

appeal.

Discussion

Defendant contends the court erred in denying his motion to strike the prior prison 

term enhancement. He argues that the enhancement under section 667.5. subdivision (b)

applies only if the prior conviction was a felony and that after entry of his plea in the 

present case, but before sentencing, his conviction in the prior case2was reduced from a 

felony to a misdemeanor under the provisions of section 1170.18.

The one-year enhancement under section 667.5, subdivision (b) applies only to 

prior felony convictions.3(People v. Tenner (1993) 6 Cal.4th 559, 563 [“Imposition of a 

sentence enhancement under Penal Code section 667.5 requires proof that the defendant: 

(1) was previously convicted of a felony; (2) was imprisoned as a result of that 

 

2 A 2013 conviction for the violation of section 496, subdivision (a) in Mendocino 

County case No. SCUKCR-120023454003.

3

Section 667.5, subdivision (b) provides, in relevant part: “[W]here the new offense is 

any felony for which a prison sentence or a sentence of imprisonment in a county jail 

under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and 

consecutive to any other sentence therefor, the court shall impose a one-year term for 

each prior separate prison term or county jail term imposed under subdivision (h) of 

Section 1170 or when sentence is not suspended for any felony.”
3

conviction; (3) completed that term of imprisonment; and (4) did not remain free for five 

years of both prison custody and the commission of a new offense resulting in a felony 

conviction.”].) Subdivision (f) of section 1170.18 provides that a person who has 

completed a prison term on a felony conviction that would have been a misdemeanor had 

Proposition 47 been in effect at the time of the conviction may file an application to have 

the prior judgment of conviction reclassified as a misdemeanor. Subdivision (k) of 

section 1170.18 provides, in relevant part, that “[a]ny felony conviction that is . . .

designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor 

for all purposes.” (Italics added.) Defendant argues that because his prior conviction is 

now a misdemeanor, it does not support imposition of a one-year sentence enhancement 

under section 667.5, subdivision (b) so that the court erred in refusing to strike the 

enhancement.

In People v. Diaz (2015) 238 Cal.App.4th 1323, 1332, the court held that a motion 

to strike an enhancement under section 667.5, subdivision (b) was premature because in 

order for defendant’s prior conviction “to ‘be considered a misdemeanor for all purposes 

[except firearm rights]’ (§ 1170.18, subd. (k)), which is the necessary predicate of his 

contention that his section 667.5, subdivision (b) enhancement must be stricken, he must 

file an application under section 1170.18, subdivision (f) to have the offense designated 

as a misdemeanor in the superior court of conviction.” Here, while defendant successfully 

had his prior conviction reduced to a misdemeanor under section 1170.18, he failed to 

obtain a certificate of probable cause for an appeal from the judgment in the present case, 

which bars consideration of this issue on appeal. (§ 1237.5, subd. (b); People v. Shelton

(2006) 37 Cal.4th 759, 766 [“[A] defendant may not appeal ‘from a judgment of 

conviction upon a plea of guilty or nolo contendere’ unless the defendant has applied to 

the trial court for, and the trial court has executed and filed, ‘a certificate of probable 

cause for such appeal.’ ”].) 

Defendant attempts to avoid the requirement for a certificate of probable cause by 

casting his sentence as unauthorized or as involving “sentencing issues, that do not 

challenge the validity of the plea.” However, defendant’s challenge to his sentence 
4

constitutes a challenge to the validity of his plea because the stipulated aggregate 

sentence of two years four months was an integral part of his plea agreement. (People v. 

Hester (2000) 22 Cal.4th 290, 295 [“Where 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.”]; People v. Johnson (2009) 47 Cal.4th 668, 678 [“Even 

when a defendant purports to challenge only the sentence imposed, a certificate of 

probable cause is required if the challenge goes to an aspect of the sentence to which the 

defendant agreed as an integral part of a plea agreement.”].)

Defendant argues that he is excused from the probable cause requirement because 

section 1170.18 was enacted as part of Proposition 47 “[a]fter appellant’s plea, but prior 

to sentencing.” Whether or not those facts, if true, would excuse the absence of a 

certificate of probable cause, his facts are simply incorrect. The voters enacted

Proposition 47 on November 4, 2014, and the law went into effect the next day. (People 

v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) The felony complaint was filed in this 

case on November 21, 2014, and defendant’s plea was entered December 8, 2014.

Because defendant appeals from a judgment based on his plea of no contest and he 

failed to obtain a certificate of probable cause, the appeal must be dismissed. (§ 1237.5; 

People v. Mendez (1999) 19 Cal.4th 1084, 1096-1097.)

Disposition

The appeal is dismissed. 

_________________________

Pollak, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Siggins, J.