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Filed 10/20/17

CERTIFIED FOR PUBLICATION

IN THE APPELLATE DIVISION SUPERIOR COURT

STATE OF CALIFORNIA, COUNTY OF FRESNO

THE PEOPLE, 

Plaintiff and Respondent,

v.

DRUMOND TYREE ALWIEN, 

Defendant and Appellant.

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Sup. Ct. Appeal No. 2623 

Superior Court Case No. 

2139667 

OPINION

APPEAL from a judgment of the Superior Court of Fresno 

County, the Honorable James Oppliger, Judge. Affirmed.1

Attorneys and Law Firms

Daniel J. Brickey, Public Defender, attorney for 

defendant/appellant Drumond Tyree Alwien. 

Carl Monopoli and Galen Rutiaga, Chief Deputy District 

Attorneys, attorney for plaintiff/respondent the People of the 

State of California.

 

1 This opinion was originally issued by the court on October ___, 2017, 

and certified for publication on the same date, which is within the time 

that the appellate division retained jurisdiction. This opinion has been 

certified for publication in the Official Reports. It is being sent to 

the Fifth District Court of Appeal to assist the Court of Appeal in 

deciding whether to order the case transferred to the court on the 

court’s own motion under Rules 8-1000 – 8.1018.
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I.

BACKGROUND

Appellant received a grant of felony probation after he was 

returned from the California Department of Corrections and 

Rehabilitation (CDCR) from a diagnostic evaluation and 

recommendation pursuant to Penal Code section 1203.03. He then 

sought to address his pending traffic infraction cases. In the 

traffic court, he claimed the prosecution of his pending traffic 

cases was barred by Vehicle Code section 41500 because he had been 

committed to the CDCR for a diagnostic evaluation.2 The traffic 

court denied his motion to dismiss his consolidated cases, and 

appellant thereafter entered a guilty plea. He timely filed a 

notice of appeal.

Appellant again maintains his traffic cases should have been 

dismissed under section 41500 because he received a “commitment” 

to the CDCR when he was placed in a diagnostic facility. 

Respondent challenges this claim arguing appellant was “placed 

temporarily” in a CDCR diagnostic facility, not actually committed 

to the CDCR as defined in section 41500. In their initial 

briefing, both parties assumed without discussion that this matter 

was appealable. We requested further briefing on the 

appealability issue, given appellant’s guilty plea. 

 

2 All further undesignated references to sections are to the 

Vehicle Code unless otherwise indicated.
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Appellant maintains his case is indeed appealable, 

notwithstanding his guilty plea, because his claim challenges the 

jurisdiction of the court and the legality of the proceedings. 

Respondent now maintains this case is not appealable and, 

moreover, appellant should be estopped from challenging his 

sentence. We believe the claim raised here challenges the 

legality of the traffic court to proceed in light of the 

prosecutorial bar in section 41500. As such, we conclude this 

matter is appealable. We reject respondent’s estoppel claim. 

Ultimately, we reject appellant’s contention and affirm the 

judgment. 

II.

DISCUSSION

A. Appealability

While a certificate of appealability (Pen. Code, § 1237.5) is 

not required for misdemeanor or infraction appeals taken after a 

guilty or no contest plea (In re Olsen (1986) 176 Cal.App.3rd 386, 

390; People v. Castro (2012) 207 Cal.App.4th Supp. 9, 14; see Pen. 

Code, § 1466, subd. (b)), post-guilty-plea misdemeanor or 

infraction appeals are limited to those that raise “reasonably 

constitutional, jurisdictional, or other grounds going to the 

legality of the proceedings.” (People v. Egbert (1997) 59 

Cal.App.4th 503, 508 (Egbert); see In re Olsen, supra, 176

Cal.App.3rd at p. 390.) This is because “it was a settled tenet of 

the common law that ‘. . . irregularities not going to the 

jurisdiction or legality of the proceedings will not be reviewed’ 

after judgment on a guilty plea.” (In re John B. (1989) 215 
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Cal.App.3rd 477, 483, quoting Stephens v. Toomey (1959) 51 Cal.2d 

864, 870.) The reason for the rule is clear – a guilty plea 

“`concedes that the prosecution possesses legally admissible 

evidence sufficient to prove defendant’s guilt beyond a reasonable 

doubt’” (Egbert, supra, 59 Cal.App.4th at p. 508, citing People v. 

Turner (1985) 171 Cal.App.3rd 116, 125), it “waives any right to 

raise questions regarding the evidence, including its sufficiency 

or admissibility, even if the claim of evidentiary error is based 

on constitutional violations.” (Ibid.)

Moreover, because a guilty plea also waives any irregularity 

in the proceedings that would not preclude subsequent proceedings 

to establish guilt, they may not be asserted on appeal after a 

guilty plea. (People v. Turner, supra, 171 Cal.App.3rd at p. 126.)

“In other words, by pleading guilty the defendant admits that he 

did that which he is accused of doing and he thereby obviates the 

procedural necessity of establishing that he committed the crime 

charged . . . A defendant thereafter can raise only those 

questions which go to the power of the state to try him despite 

his guilt.” 

(Ibid.) Here, appellant claims his prosecution should be barred 

after he was sent to the CDCR for a diagnostic evaluation. In 

other words, he is challenging the legality of the proceedings 

after the trial court denied his motion to dismiss under section 

41500. Appellant is not challenging the sufficiency of the 

evidence to convict him, any procedural defects or irregularities, 

or the sentenced imposed. Because appellant is raising “only 

those questions which go to the power of the state to try him 
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despite his guilt” (ibid.), we believe, notwithstanding his guilty 

plea, this case is appealable.3

Respondent nevertheless argues appellant should be estopped 

from complaining about a sentence to which he agreed. However, 

appellant is not contesting his sentence. Rather, he is 

challenging the ability of the state to prosecute him in the first 

instance. Respondent cites People v. Ramirez (2008) 159 

Cal.App.4th 1412, to support its estoppel claim, arguing appellant 

received the benefit of his plea bargain, and he should not be 

heard to complain here. At no time in the traffic court did 

appellant concede the state’s ability to prosecute him. To the 

contrary, appellant pressed his motion to dismiss, and only after 

the traffic court denied it, did he enter a guilty plea. We do not 

believe appellant is “trifling” with this court to “better the 

bargain through the appellate process.” (People v. Hester (2000) 

22 Cal.4th 290, 295; see People v. Palmer (2013) 58 Cal.4th 110, 

116-117.) Instead, appellant is again challenging the legality of 

the proceedings in light of the traffic court’s failure to dismiss 

under section 41500. We reject respondent’s estoppel argument. 

B. Review Standard

We must decide, as a question of first impression, whether a 

probationer “placed temporarily” in a CDCR diagnostic facility 

pursuant to Penal Code section 1203.03, has received a “commitment 

to the custody” of the CDCR within the meaning of section 41500. 

In doing so we are tasked with interpreting the language in each 

 

3 Because we find this case appealable as raising a question going 

to the legality of the proceedings, we decline to consider whether 

the trial court also lacked fundamental jurisdiction.
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statute. This inquiry involves our independent review, which 

requires us to first look to the language of the statutes, mindful 

that our “fundamental task” is “to ascertain the intent of the 

lawmakers so as to effectuate the purpose of the statute[s].” 

(People v. Pennington (2017) 3 Cal.5th 786, 795.) If the words 

“appear susceptible to more than one reasonable construction,” we 

look to “other indicia of legislative intent,” and the entire 

statutory scheme instead of “a single word or phrase.” (Ibid.) 

Moreover, if the statutory language is ambiguous, we apply other 

“maxims of statutory construction,” to include: avoiding absurd 

results, considering the consequences of a particular meaning –

including impact on public policy, and following express 

legislative intent, if any. (People v. Spriggs (2014) 224 

Cal.App.4th 150, 154-155.)

C. Appellant Did Not Receive A Prison Commitment When He Was 

Placed Temporarily In A CDCR Diagnostic Facility

Section 41500, subdivision (a), bars the prosecution of a 

person for “pending” non-felony offenses arising out of the 

operation of a motor vehicle “at the time of his or her commitment 

to the custody” of the CDCR, the Division of Juvenile Justice 

(DJJ), or to the county jail pursuant to the Criminal Justice 

Realignment Act (Pen. Code, § 1170, subd. (h)). This statute “is 

an exception to the rule that all criminal offenses are subject to 

prosecution.” (Joseph v. Superior Court (1992) 9 Cal.App.4th 498, 

503.) The statute was originally drafted to grant a fresh start 

to parolees released from prison or the Youth Authority and to 

provide freedom from detainers which may impede an inmate’s 

release. (People v. Lopez (2013) 218 Cal.App.4th Supp. 6, 11; 
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People v. Freeman (1987) 225 Cal.App.3rd Supp. 1, 4 & fn. 2.) The 

Legislature believed the rehabilitation process was aided by 

eliminating interruptions due to arrest and prosecution for 

certain non-felony traffic offenses. (People v. Lopez, supra, 218 

Cal.App.4th at p. Supp. 11.)

Appellant maintains the statute is clear, “without any 

condition or qualification” of how a person received a 

“commitment” to the CDCR. He adds, the Legislature expressly 

excluded alcohol-related offenses from section 41500, but did not 

otherwise limit the statute’s application. He concludes if the 

Legislature meant to exclude people placed temporarily in the CDCR 

for a diagnostic evaluation, it would have expressly said so as it 

did with alcohol-related offenses. Respondent counters that 

temporary placement in a diagnostic facility before sentencing is 

not a commitment to the CDCR. Respondent points to the 

legislative intent in section 41500, arguing that temporary 

placement in a diagnostic facility is not akin to a lengthier 

prison term requiring a fresh start for the released parolee. 

While section 41500 may be facially interpreted as appellant 

asserts, we agree with respondent that a temporary placement in a 

diagnostic facility is not a commitment to the CDCR. The statute’s 

legislative history supports our conclusion that a “commitment” 

means a person committed by a sentence imposed to either the CDCR 

or local custody under the Criminal Justice Realignment Act. In 

1972, the Legislature noted that the purpose of section 41500 is 

to allow prisoners to leave state prison with a clean record. 

(Sen. Amend to Assem. Bill No. 749 (1972 Reg. Sess.) Apr. 25, 

1972.) Other courts have recognized this legislative purpose. (See 
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People v. Lopez, supra, 218 Cal.App.4th at p. Supp. 11; People v. 

Freeman, supra, 225 Cal.App.3rd at p. Supp. 4.) In 2015, the 

Legislature extended application of the statute to people 

committed “to a county jail pursuant to subdivision (h) of Section 

1170 of the Penal Code.” (Assem. Bill No. 1156 (2015-2016 Reg. 

Sess.) § 1.) A “commitment” to local custody pursuant to Penal 

Code section 1170, subdivision (h), is necessarily a sentence 

imposed. 

In contrast, a person placed temporarily in a CDCR diagnostic 

facility pursuant to Penal Code section 1203.03 is not yet 

sentenced. (See Pen. Code, § 1170, subd.(b)[“In determining the 

appropriate term, the court may consider the record in the case, 

the probation officer’s report, other reports, including reports 

received pursuant to [Penal Code s]ection 1203.03 . . .and any 

further evidence introduced at the sentencing hearing.”].) The 

temporary placement occurs to assist the court to determine the 

proper sentence, after a consideration of all sentencing factors. 

(People v. Arbuckle (1978) 22 Cal.3rd 749, 756; People v. Tang

(1997) 54 Cal.App.4th 669, 678-679.) Because a person placed 

temporarily in a diagnostic facility has not received a commitment 

for a sentence imposed, we believe that person is not protected by 

the prosecutorial bar in section 41500.

Moreover, a literal construction, as appellant asserts, would 

not further the legislative goal behind the statute – to give 

people a fresh start for rehabilitation upon release from a 

lengthy term of incarceration. (People v. Lopez, supra, 218 

Cal.App.4th at p. Supp. 6; People v. Freeman, supra, 225 

Cal.App.3rd at p. Supp. 4.) In contrast, a person sent to a 
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diagnostic facility can spend no more than 90 days in the facility 

before being returned to the sentencing court. The statute enables 

the trial court to order a prison-eligible defendant be “placed 

temporarily” in a “diagnostic facility” for treatment and 

diagnosis, if the court “concludes that a just disposition of the 

case requires” such services. (Pen. Code, § 1203.03, subd. (a).) 

Within 90 days, the prison director shall “cause defendant to be 

observed and examined and shall forward to the court his diagnosis 

and recommendation concerning the disposition of defendant’s 

case.” (Pen. Code, § 1203.03, subd. (b).) 

We do not believe the rehabilitative fresh start envisioned by 

the Legislature for inmates released after being sentenced to a 

lengthy term of incarceration was also meant for a probationer who 

was placed temporarily in a diagnostic facility. We think this 

the more reasonable result given the potential mischief in 

interpreting the statute otherwise. For example, appellant’s 

interpretation would extend application of section 41500 to 

probationers, a class of people clearly not considered by the 

Legislature. 

Appellant nevertheless maintains that probationers returned 

from a CDCR diagnostic evaluation have not been expressly excluded 

from section 41500, as other alcohol-related offenders have been. 

We again note that the Legislature recently extended application 

of the statute to inmates sentenced to local custody under the 

Criminal Justice Realignment Act (Pen. Code, § 1170, subd. (h)). 

The Legislature, however, did not extend the statute’s application 

to probationers, like appellant, who were returned from a 90-day 
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diagnostic evaluation. Had the Legislature intended to include 

probationers in section 41500, it could have clearly said so. 

At oral argument appellant recognized the legislative purpose 

behind section 41500 was to give inmates a rehabilitative fresh 

start on release from custody. He contended he was no less 

deserving of a fresh start than a CDCR or DJJ parolee. While a 

fresh start is a laudable goal, it is the Legislature and not this 

court who can extend section 41500 to probationers. We note under 

appellant’s construction, probationers sentenced to longer jail 

terms, for example 365 days, without being temporarily placed in a 

CDCR diagnostic facility, would be unable to avail themselves of 

section 41500. In contrast, probationers receiving much shorter 

jail terms on return from a 90-day diagnostic evaluation, would 

enjoy the statute’s prosecutorial bar. Certainly, a probationer 

serving a longer jail term is as deserving of a fresh start, if 

not more so, than a shorter-term probationer returned from a 

diagnostic evaluation. We are unwilling to create this anomaly by 

interpreting section 41500 as appellant contends.4

III.

DISPOSITION

The judgment is affirmed.

 

4 For the first time, at oral argument appellant sought to make an 

equal protection argument. We are perplexed because appellant 

expressly disclaimed making an equal protection argument in his 

opening brief. In any event, we decline to consider this argument 

and consider it forfeited for the failure to raise it in the 

briefing. (People v. Freeman (1994) 8 Cal.4th 450, 487-488, fn. 3; 

People v. Harris (1985) 165 Cal.App.3rd 1246, 1256, fn. 8.) 
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__________________________________

Hon. Brian Alvarez, Acting Presiding

Judge of the Appellate Division 

Fresno County Superior Court

 WE CONCUR: 

 __________________________________ 

Hon. Rosemary T. McGuire,

Judge

 _________________________________

 Hon. Gary D. Hoff,

Judge