Filed 2/26/14 P. v. Allen CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. CHRISTOPHER PAUL ALLEN, Defendant and Appellant. H039525 (Santa Clara County Super. Ct. Nos. C1084794 and CC944574)

In consolidated cases, de fendant Christopher Paul A llen pleaded no contest to three felonies and a misdemeanor, and he adm itted prior strike allega tions. In exchange, the prosecution agreed to a specified prison te rm and dismissal of the remaining charges. On appeal, defendant challenges the trial court’ s consolidation order. He also challenges venue in Santa Clara County for an offense that occurred in San Francisco. As we explain, these issues are not cognizable on appeal from defendant’s no contest plea because they do not concern th e jurisdiction or the legality of the proceedings resulting in the plea. (Pen. Code, § 1237.5 1 ; People v. Kaanehe (1977) 19 Cal.3d 1, 9 ( Kaanehe ).)
Because the issues are barre d by defendant’s plea, we will dismiss the appeal.
I. TRIAL COURT PROCEEDINGS In case No. CC944574, defendant was charge d by information with two counts of forcible rape (§ 261, subd. (a )(2); counts one and three), forcible oral copulation (§ 288a,

1 Further statutory referen ces are to the Penal Code.subd. (c)(2); count two), and making crimin al threats (§ 422; count four). The information alleged a prior strike convic tion (§ 1170.12) and a prior serious felony conviction (§ 677, subd. (a)). The offenses involved defendant’s former girlfriend. Counts one and two occurred in August 20 08 in San Jose, count four occurred between May and September 2008 in Sa n Jose, and count three o ccurred in May 2008 in San Francisco. At the preliminary hearing, the tr ial court admitted into evidence a letter from a San Francisco County assistant district a ttorney authorizing pr osecution of the San Francisco offense in Santa Clara County. In case No. C1084794, defendant was char ged with assault with a deadly weapon or with force likely to cause great bodily harm. (§ 245, subd. (a)(1).) That offense, involving a different girlfriend, occurred in August 2010.
The information in case No. CC944574 was filed in January 2010, and the
information in case No. C1084794 was filed a year later, in January 2011. In September 2011, the court granted the prosecution’s motio n to consolidate the two cases, with the earlier case designated as the main case and th e assault count renumbered as count five. Nearly a year after consolid ation, the parties entered in to a plea agreement. In August 2012, in exchange for a stipulated prison sent ence of 19 years 8 months, defendant pleaded no contest to counts one, three, and four, and admitted the prior convictions alleged. The prosecution ame nded the information to add misdemeanor battery (§ 243, subd. (a); count six), to wh ich defendant also pleaded no contest, and it
dismissed counts two and five. In February 2013, the court sentenced de fendant consistent with the terms of the plea agreement. The court issued a certificate of probable cause in February 2013 in case No. C1084794, and an amended certificat e of probable cause on March 15, 2013, encompassing both cases. Defendant f iled a timely notice of appeal.II. DISCUSSION

A. A PPEAL F ROM J UDGMENTS E NTERED A FTER G UILTY OR N O C ONTEST P LEAS A plea of guilty “admits all matter s essential to the conviction.” ( People v. DeVaughn (1977) 18 Cal.3d 889, 895 .) To be cognizable on an appeal from a guilty plea,
an issue must be based on “reasonable constitu tional, jurisdictional, or other grounds going to the legality of the proceedings” resu lting in the plea. (§ 1237.5(a); see also People v. Ribero (1971) 4 Cal.3d 55, 60-64.) The limitation on appellate review from a criminal judgment applies equally to appe als from judgments entered pursuant to no contest pleas. ( People v. Voit (2011) 200 Cal.App. 4th 1353, 1364.) Section 1237.5, requiring a defendant to obtain a certificate of probable cause before taking an appeal from a guilty or no contest plea, is a procedure to weed out frivolous claims. ( Kaanehe , supra , 19 Cal.3d at p. 9.) Obtain ing a certificate of probable cause does not expand the grounds upon which an appeal may be taken after entry of a plea, nor does it make cogni zable issues which have been waived by a guilty or no contest plea. ( Ibid ; People v. Collins (2004) 115 Cal.App.4th 137, 149.) Review of noncognizable issues on appeal may be barred by a plea even where, as in this case, the
trial court issued a certificate of probable cause. (See, e.g., People v. Krotter (1984) 162 Cal.App.3d 643 ( Krotter ) [rejecting appeal notwithstandi ng issuance of certificate of probable cause].)
B. T HE C ONSOLIDATION C LAIM Defendant argues that the trial court’s c onsolidation of the informations was error
under section 954 2 because the cases were not connect ed in their commission, nor were

2 Section 954 provides: “An accusato ry pleading may charge two or more different offenses connected together in thei r commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accu satory pleadings are f iled in such cases in the same court, the court may or der them to be consolidated.”the offenses part of the same class of crimes . Defendant also cont ends consolidation was improper based on the potential prejudice to de fendant from the aggr egated evidence. These arguments are not cognizable on appeal. Arguing that defendant’s consolidation ch allenge is barred by his no contest plea, the People rely on cases barring review of se verance after entry of guilty or no contest pleas: People v. Haven (1980) 107 Cal.App.3d 983, 986 (challenge to denial of severance motion not cognizable on appeal); People v. Sanchez (1982) 131 Cal.App.3d 323, 335; People v. Turner (1985) 171 Cal.A pp.3d 116, 127 ( Turner ); and Krotter , supra , 162 Cal.App.3d at p. 648. Defendant correc tly notes that none of the above-cited cases challenged consolidation. They nonethele ss compel our conclusion that defendant’s consolidation claim is barred by his no contest plea. As explained in Krotter , a no contest plea bars a defendant from appealing the trial court’s denial of a motion to sever because “motions to sever are designed to protect the ri ght to a fair trial, i.e., by not prejudicing the jury against the defendant charge d with many unrelated crimes.” ( Ibid .) Like the availability of severance, limitations on consolidation are de signed to protect a defendant’s right to a fair trial. Both serv e as safeguards in the inquiry into guilt, but neither protection implicat es “the [trial court’s] jurisdic tion or legality of the proceedings resulting in the plea.” ( Kaanehe , supra , 19 Cal.3d at p. 9.) Thus, purported errors relating to either consolidation or a refusal to sever are waived by entry of a no contest plea.

Turner also supports our conclusion. Ho lding that a defendant could raise a double jeopardy challenge on appeal from a gu ilty plea, the court explained that speedy trial and due process issues are not cognizab le on appeal from a judgment after a guilty plea because those issues necessitate factua l assessments to determine prejudice, and no
facts are assessed when a defendant pleads guilty. ( Turner , supra , 171 Cal.App.3d at pp. 128-129.) In contrast, a do uble jeopardy challenge survives a guilty plea because guilt and prejudice are irrelevant to the double jeopardy inquiry. ( Ibid .) Like speedy trial, dueprocess and severance claims, challenges to a trial court’s consolidation order are barred by guilty and no contest pleas because they require a careful assessment of prejudice,
which cannot be done when a defendant enters a plea instead of going to trial. ( People v.
Balderas (1985) 41 Cal.3d 144, 171 [evaluating motions for severance and objections to consolidation in light of facts known to tr ial court; requiring de fendant to establish prejudice].)
C. T HE V ENUE C LAIM Defendant argues that the Santa Clara Coun ty Superior Court lacked “territorial jurisdiction” over count three (the San Franci sco rape) because the court failed to comply with section 784.7, subdivision (a), which provi des for properly join able rape offenses occurring in more than one county to be tried together. 3 According to defendant, no hearing was held under sec tion 784.7, subdivision (a), no writing was provided by the Santa Clara County District Attorney accepti ng venue for the San Francisco offense, and
the letter from the San Francisco District At torney’s Office was insufficient because it was signed by an assistant district attorney and not the elected district attorney. Although the Legislature has used the term “jurisdictional territory” to designate proper venue in criminal cases (§§ 777, 691, subd. (b)), the California Supreme Court has explained that “ venue is not jurisdictional in the fundamental sense ,” as it does not involve subject matter jurisd iction over a proceeding. ( People v. Simon (2001) 25 Cal.4th 1082, 1096 ( Simon ).) Unlike the trial court’s subject matter jurisdiction which can be

3 Section 784.7, subdivision (a) states: “When more than one violation of Section . . . 261 . . . occurs in more than one jurisd ictional territory, the jurisdiction of any of those offenses, and for any o ffenses properly joinable with that offense, is in any jurisdiction where at least one of the offenses occurred, subject to a hearing, pursuant to Section 954, within the jurisdic tion of the proposed trial. At the Section 954 hearing, the prosecution shall present eviden ce in writing that all district attorneys in counties with jurisdiction of the offenses agree to the venue. Charge d offenses from jurisdictions where there is no written agreement from the dist rict attorney shall be returned to that jurisdiction.”raised at any time in a criminal proceeding ( People v. Mower (2002) 28 Cal.4th 457, 474, fn. 6), an objection to a trial court’s venue must be raised be fore trial or it is forfeited. ( Simon , supra , at p. 1104.) By pleading no contest, defendant fo rfeited his challenge to the Santa Clara County Superior Court’s venue over the San Francisco rape change. Krotter is controlling. In Krotter , the court held that a change of venue motion is not reviewable after a no contest plea. ( Krotter , supra , 162 Cal.App.3d at p. 648.) Krotter reasoned that a change of venue motion relates to a defe ndant’s guilt or innoce nce because the motion is designed to protect a defendant’s in terest in receiving a fair trial. ( Ibid .) Indeed, “the right to be tried in a statut orily designated venue is intend ed, from the perspective of an accused, as a safeguard against being requir ed to stand trial in an unrelated and potentially burdensome distant location.” ( Simon , supra , 25 Cal.4th at p. 1103.)
Defendant contends that his claim is not barred by Krotter because he is not challenging the denial of a motion to change venue. Rather, he ch allenges the validity of
the trial court’s decision to include the San Fr ancisco rape charge within the Santa Clara County information without fo llowing the statutory requirements. We disagree. The procedural posture of defendant’s claim does not render the claim reviewable. Defendant’s challenge is to the lawfulness of venue in Santa Clara County. Regardless of how it is packaged, it relates to defendant’s interest in receiving a fair trial. In
accordance with Krotter , the claim is not reviewable in light of defendant’s no contest plea.
D. R EVIEW B Y P ETITION F OR W RIT OF M ANDATE Defendant argues that his issues are c ognizable on appeal because he otherwise would be forced to go to tria l to preserve his right to appe llate review. This argument is unfounded. A defendant is free to seek pretri al review of venue and consolidation rulings through a petition for writ of mandate. ( Krotter , supra , 162 Cal.App.3d at p. 649 [venue]; Verzi v. Superior Court (1986) 183 Cal.App.3d 382 [severance].)III. DISPOSITION The appeal is dismissed.

__________ _______________ ___________ Grover, J.

WE CONCUR:

_____________ _______________ Elia, Acting P.J.

_____________ _______________ Mihara, J.