P. v. Keith

Filed 10/15/08 P. v. Keith CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles D. Sheldon, Judge. Dismissed.

Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Amy Keith, convicted of arson of her own property (Pen. Code,[1] 451, subd. (d)) on a nolo contendere plea, appeals her conviction on the basis that her statements to an arson investigator should have been suppressed because it was obtained in violation of her Miranda rights. (Mirandav. Arizona (1966) 384 U.S. 436 (Miranda).) We dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Keith was the only person present when a fire broke out in the rear bedroom of a four-unit apartment complex that served as a halfway house for persons with mental illness. Initial investigation suggested that the fire was set in the bedroom and that it was not accidental. Keith gave conflicting accounts of how and where the fire started, but ultimately admitted to an arson investigator that she intentionally set the fire with a lighter in order to kill her upstairs neighbor. Keith was charged with arson of an inhabited structure ( 451, subd. (b)) and with arson of her own property ( 451, subd. (d).)

At the preliminary hearing Keith unsuccessfully moved to suppress her statement on the ground that it was obtained in violation of her Miranda rights. Keith later filed a motion to set aside the information under section 995 on the basis of a violation of Miranda, supra, 384 U.S. 436; this motion was denied. Next, Keith filed a motion under section 1538.5 to suppress the statement: here, the stated ground for the motion was that the evidence was seized in violation of the defendants right to be free from unreasonable search and seizure as guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution, and Article I, section 13, of the California Constitution. The trial court conducted an evidentiary hearing, at the close of which Keiths counsel argued that both the Fourth and Fifth Amendments had been violated, requiring suppression of the statement. The trial court concluded that there was no violation of either constitutional provision and that Keiths Miranda rights had not been violated.

Keith subsequently entered a plea of nolo contendere to the charge of arson of her property. The trial court found her guilty and sentenced her to the mid-term of two years in state prison. Keith appeals.

DISCUSSION

Keiths sole claim on appeal is that her statement should have been suppressed because it was involuntary and obtained in violation of her Miranda rights. At issue here is whether we may consider Keiths appeal on this ground after her nolo contendere plea. We cannot.

A guilty plea admits all matters essential to the conviction. (People v. DeVaughn (1977) 18 Cal.3d 889, 895 (DeVaughn).) Issues cognizable on an appeal following a guilty plea are limited to issues based on reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings resulting in the plea. [Citations.] (Id. at pp. 895-896; see also People v. Hoffard (1995) 10 Cal.4th 1170, 1178 [review after a guilty plea is limited to issues going to the jurisdiction of the court or the legality of the proceedings, including the constitutional validity of the plea].) A plea of nolo contendere has the same legal effect as a guilty plea. ( 1016.)

The California Supreme Court has held that a defendants guilty plea forecloses an appeal of the conviction on the basis that a statement was involuntary. Given the accuseds guilty plea, an extrajudicial statement relating to his guilt of a charged crime does not, by reason of a claim that it was involuntarily or improperly induced, raise an issue on appeal based on constitutional, jurisdictional or other grounds going to the legality of the proceedings resulting in the plea. (DeVaughn, supra, 18 Cal.3d at p. 896.) Keiths claim of an involuntary statement taken in violation of Miranda, supra, 384 U.S. 436 is therefore not reviewable on appeal.

Perhaps to circumvent this absolute bar, Keith casts her appeal as one made under section 1538.5, subdivision (m). That statute provides that a defendant may seek further review of the validity of a search or seizure on appeal even if the defendant entered a guilty plea. Section 1538.5 is the proper avenue for suppressing evidence that is the product of an unlawful seizure of a person (DeVaughn, supra, 18 Cal.3d at p. 896, fn. 6 [section 1538.5 properly used to seek suppression of a statement obtained as a result of an unlawful search and seizure]; People v. Massey (1976) 59 Cal.App.3d 777, 782), and therefore, to the extent that in the trial court Keith was attempting to suppress her statement as the result of an unlawful detention, her motion was properly made under this provision. However, Keiths appellate contentions do not pertain to the legality of her detention in any way. She argues that her statement was involuntary because her will was overborne by a law enforcement officer who coerced her into speaking, took her to a police station to intimidate her and overcome her desire to remain silent, subjected her to an interview that under the circumstances should be considered lengthy, and capitalized on her mental illness, her inexperience with police techniques and her lack of understanding of her constitutional rights. She then contends that the officer violated her Miranda rights by disregarding her invocation of her right to remain silent.

With these contentions on appeal, Keith is not making a Fourth Amendment argument and seek[ing] further review of the validity of a search or seizure on appeal from a conviction in a criminal case ( 1538.5, subd. (m)). She is contending that her statements were illegally obtained in violation of the Fifth Amendment and Miranda, supra, 384 U.S. 436. By its own terms and as set forth in decisional law, section 1538.5, subdivision (m) does not authorize this appeal. ( 1538.5, subd. (m); DeVaughn, supra, 18 Cal.3d at p. 896, fn. 6 [section 1538.5 has no application to suppress statements claimed to be involuntarily made or obtained in violation of the Fifth Amendment; may be used to suppress evidence only where there has been a search and seizure]; People v. Mattson (1990) 50 Cal.3d 826, 851 [Although the procedure may be used to exclude confessions that are the product of an unlawful search and seizure, and the question of whether a confession was unlawfully obtained may be decided by the court in order to rule on the admissibility of physical evidence that is discovered as a result of the confession, section 1538.5 may not be used to suppress admissions and confessions on grounds that they are the product of Fifth Amendment and/or Sixth Amendment violations], superseded by statute as stated in People v. Jennings (1991) 53 Cal.3d 334, 387, fn. 13.)

In light of Keiths nolo contendere plea and notwithstanding her invocation of section 1538.5, subdivision (m), an extrajudicial statement relating to [her] guilt of a charged crime does not, by reason of a claim that it was involuntarily or improperly induced, raise an issue on appeal based on constitutional, jurisdictional or other grounds going to the legality of the proceedings resulting in the plea. (DeVaughn, supra, 18 Cal.3d at p. 896; see also People v. Whitfield (1996) 46 Cal.App.4th 947, 959.) As Keiths plea forecloses her challenges to the voluntariness of her statement and the officers compliance or lack thereof with Miranda, supra, 384 U.S. 436, the appeal is dismissed. (People v. Brown (1981) 119 Cal.App.3d 116, 124-125.)

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

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[1] All further statutory references are to the Penal Code.