NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

GOMES, J.

Mark Frankie Dennison punched his girlfriend and fought with police officers. To challenge an evidentiary ruling at the preliminary hearing procedure, he filed a motion to set aside the information. The court sent the case to the same magistrate for additional preliminary hearing testimony and then denied his motion. For a negotiated indicated sentence of six years and four months, about a decade shorter than his exposure, he then pled nolo contendere to five crimes. After securing a certificate of probable cause, he now argues that pre-plea procedure prejudiced him. We correct an error in the length of a concurrent state prison term but otherwise affirm the judgment.

DISCUSSION

Dennison argues that the court should have granted his motion to set aside the information instead of sending the case back for additional testimony. The Attorney General argues that Dennison's nolo contendere pleas preclude appellate review and, if not, that sending the case back for additional testimony was harmless error.

Our analysis commences with a summary of the factual and procedural history. On the afternoon of June 16, 2009, a uniformed police officer saw Dennison punching his girlfriend repeatedly in the face. The officer yelled "police" and ordered him to stop, but Dennison clenched his fist to punch her again. As the officer stepped between him and his girlfriend, Dennison struck the officer on the leg, dislocating his kneecap. Dennison struggled with both uniformed officers, resisted handcuffing, and told his girlfriend, "You better not have called the cops."

On June 18, 2009, the district attorney filed a two-count complaint charging Dennison with corporal injury to a cohabitant (count 1; Pen. Code, § 273.5, subd. (a)1) and resisting an executive officer (count 2; § 69) on June 16, 2009. In both counts, the information alleged a criminal threats prior as a serious or violent felony or juvenile adjudication within the scope of the three strikes law. (§§ 422, 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) On June 18, 2009, he pled not guilty and denied the allegations.

On June 29, 2009, both police officers who were at the scene of the crimes testified at the preliminary hearing. On cross-examination of one of the officers, the magistrate sustained the prosecutor's objection to the question, "Did he tell you whether he knew it was police officers he was fighting with?" The magistrate held Dennison to answer on both charges in the complaint and added two additional charges, assault by means of force likely to produce great bodily injury (as to his girlfriend) and battery of a peace officer.

On July 6, 2009, the district attorney filed a five-count information charging Dennison with corporal injury to a cohabitant (count 1; § 273.5, subd. (a)), resisting an executive officer (count 2; § 69), assault by means of force likely to produce great bodily injury (count 3; § 245, subd. (a)(1)), battery of a peace officer (count 4; § 243, subd. (c)(2)), and resisting a peace officer (count 5; § 148, subd. (a)(1)) on June 16, 2009. In all four felony counts, the information alleged a criminal threats prior as a serious or violent felony or juvenile adjudication within the scope of the three strikes law. (§§ 422, 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) In counts 2 and 4, the information alleged personal infliction of great bodily injury. (§ 12022.7, subd. (a).) On July 13, 2009, he pled not guilty and denied the allegations.

On July 17, 2009, Dennison filed a motion to set aside the information. (§ 995.) His argument was that the magistrate's ruling sustaining the prosecutor's objection at the preliminary hearing denied him the "fundamental right" of an "opportunity to present admissible evidence in his defense" to negate the element of "knowingly" resisting an executive officer. (§ 69.) On July 22, 2009, the district attorney filed an opposition to the motion. His argument was that the evidence showed probable cause of the element of "knowingly" resisting an executive officer and, in the alternative, that the court had the statutory authority to "order further proceedings" to correct "minor errors of omission, ambiguity, or technical defect." (§ 995a, subd. (b)(1).) On July 30, 2009, the court ordered further proceedings by the same magistrate "to address the omission without a complete rehearing of the preliminary examination."

On August 3, 2009, Dennison's attorney inquired of the officer before the same preliminary hearing magistrate, "Did he make any statements to you to the effect that he did not know you were police officers?" The officer replied, "Yes," and, quoting his notes, testified, "`Dennison stated that he was unaware that it was Visalia PD officers he was fighting with.' Stated he did hit the victim while the fight with her [sic]. He thought it was the victim's stepson. He was trying to get him off her. That's why he fought back. Dennison stated that he tried [sic] to fight with the officers." Noting the officers "were in their uniform[s]" and "announced that they were police officers," the magistrate found "sufficient evidence to establish that [Dennison] either knew or should have known or reasonably should have known that they were police officers" and denied the motion to set aside the information.

On October 15, 2009, the court, noting that Dennison's exposure was 17 years, gave an indicated sentence of six years and four months, which was to require striking the strike prior and staying the personal infliction of great bodily injury enhancement. He pled nolo contendere to corporal injury to a cohabitant (count 1; § 273.5, subd. (a)), pled nolo contendere to resisting an executive officer and admitted personal infliction of great bodily injury (count 2; §§ 69, 12022.7, subd. (a)), pled nolo contendere to assault by means of force likely to produce great bodily injury (count 3; § 245, subd. (a)(1)), pled nolo contendere to battery of a peace officer (count 4; § 243, subd. (c)(2)), pled nolo contendere to resisting a peace officer (count 5; § 148, subd. (a)(1)), and admitted the criminal threats prior as a serious felony prior (§ 667, subd. (a)). The court found a factual basis for the pleas, accepted the pleas, struck the criminal threats prior as a strike prior, and entered a judgment of conviction.

On November 1, 2009, the court imposed the negotiated indicated sentence of six years and four months — a term of five years for the criminal threats prior as a serious felony prior (§ 667, subd. (a)) consecutive to a term of 16 months (the mitigated term) for resisting an executive officer (count 2; § 69) together with a concurrent term of three years (the midterm) for corporal injury to a cohabitant (count 1; § 273.5, subd. (a)),2 a concurrent stayed term of three years (the midterm) for assault by means of force likely to produce great bodily injury (count 3; §§ 245, subd. (a)(1), 654, subd. (a)), a concurrent stayed term of two years (the midterm) for battery of a peace officer (count 4; §§ 243, subd. (c)(2), 654, subd. (a)), and a concurrent term of 365 days for resisting a peace officer (count 5; § 148, subd. (a)(1)). On November 17, 2009, Dennison filed a declaration in support of, and the court issued, a certificate of probable cause. (§ 1237.5.)

On the basis of the foregoing summary of the factual and procedural history, we turn to the Attorney General's threshold issue of whether Dennison's nolo contendere pleas preclude appellate review. Specifically, the narrower threshold issue before us is whether his nolo contendere pleas preclude appellate review even though a certificate of probable cause is in the record.

A plea of guilty or nolo contendere is a conclusive admission of guilt that admits every element of the offense charged and waives any right to raise questions about the evidence. (People v. Fulton (2009) 179 Cal.App.4th 1230, 1237 (Fulton).) After a conviction on a plea of guilty or nolo contendere, a defendant may appeal upon the issuance of a certificate of probable cause but even so may raise only reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. (Ibid., citing § 1237.5, subd. (a).)3

Dennison argues he grounded his appeal in section 1237.5 "by applying for and obtaining a certificate of probable cause from the Superior Court on showing reasonable grounds going to the legality of the proceedings." He acknowledges that he "does not question the sufficiency of the evidence." Instead, he says, he "questions the procedure utilized to obtain the magistrate's second commitment to Superior Court, thus facing him with the Hobson's choice of going to trial with a strike prior or accepting the Superior Court's offer of less than half of his 17-year maximum exposure." (Italics added.)

"Section 1237.5 essentially provides a screening mechanism through which appeals which raise no cognizable issues may be precluded." (People v. Turner (1985) 171 Cal.App.3d 116, 125 (Turner), citing People v. Ribero (1971) 4 Cal.3d 55, 63, fn. 4, superseded on another ground by rule amendment as stated by In re Chavez (2003) 30 Cal.4th 643, 655-656.) Yet a certificate of probable cause is not a talisman. Even a defendant who obtains a certificate of probable cause "will be precluded from raising issues which were waived" by a plea of guilty or nolo contendere. (Turner, supra, at p. 125.) Among those issues are "questions regarding the evidence, including its sufficiency or admissibility." (Ibid., italics added.) "A defendant thereafter can raise only those questions which go to the power of the state to try him despite his guilt. In other words, in the language of the statute, defendant can only raise `grounds going to the legality of the proceedings.'" (Id. at p. 126, citing § 1237.5.)

Dennison's admitted challenge to pre-plea procedure in connection with an issue of the admissibility of evidence fails to raise a question that goes to the power of the state to try him despite his guilt. So his nolo contendere pleas preclude appellate review even though a certificate of probable cause is in the record.

DISPOSITION

The judgment is modified by changing from four years to three years the concurrent midterm for the count 1 corporal injury to a cohabitant. (§ 273.5, subd. (a).) The matter is remanded with the directions to so amend the abstract of judgment and to send a certified copy to the Department of Corrections and Rehabilitation. Dennison has no right to be present at those proceedings. (See People v. Price (1991) 1 Cal.4th 324, 407-408.) Otherwise the judgment is affirmed.

WE CONCUR:

Levy, A.P.J.

Dawson, J.