Opinion
B204519
7-15-2009
THE PEOPLE, Plaintiff and Respondent, v. GREGORY BEATTY, Defendant and Appellant.
Roberta Simon, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Gary A. Lieberman, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Gregory Beatty purports to appeal from an order granting deferred entry of judgment following his plea of guilty to possession of cocaine. We conclude that no appeal lies and therefore dismiss.
BACKGROUND
Defendant was charged by information with possession of cocaine. He made a motion to suppress evidence.
At the hearing on defendants motion, Los Angeles Police Officer Mark Mireles testified that on November 28, 2006, he was working on a narcotics detail at a motel in Reseda when defendant came into the lobby. Mireles asked defendant if he was a guest. Defendant, who had no luggage and appeared nervous, said he was thinking about checking in. Mireles asked defendant his name and defendant responded that he had a driver license with his name on it. In checking the license, Mireles learned that defendant had an outstanding warrant. Defendant was arrested, following which cocaine was found in a backpack he had been carrying. Defendant testified at the hearing and contradicted many aspects of Mireless version of events. The trial court denied defendants motion without comment.
Immediately upon making its ruling, the court asked defense counsel if defendant wanted to accept deferred entry of judgment. A recess was taken to allow discussion of the matter. Thereafter, defendant entered a guilty plea to possession of cocaine and was granted deferred entry of judgment on condition that he successfully complete an 18-month drug program. Defendant was further informed that upon completion of the deferred entry of judgment program, his guilty plea would not constitute a conviction. But if defendant did not complete the program, the court could impose judgment, including a prison sentence of up to three years.
The day after the sentencing hearing, defendant filed a notice of appeal.
DISCUSSION
In their respective opening and respondents briefs, the parties argued whether the suppression motion had been properly denied. We then requested supplemental briefing regarding whether placing defendant on deferred entry of judgment constituted an appealable judgment or order.
In his supplemental brief, defendant concedes that it does not but asks this court to treat his appeal as a petition for extraordinary relief. We decline to do so.
In People v. Mazurette (2001) 24 Cal.4th 789 (Mazurette), the Supreme Court held that there is no right to appeal following a grant of deferred entry of judgment. The court explained that the right to appeal is statutory. An order granting probation is appealable by virtue of Penal Code section 1237, subdivision (a), which states that such an order is deemed to be a final judgment from which a defendant may appeal. (Mazurette, at p. 792; further section references are to the Penal Code.)
But when the trial court defers entry of judgment pursuant to section 1000.1, "there is—as yet—no judgment from which [a] defendant can appeal. If [he] successfully completes [his] rehabilitation, the charges will be dismissed and the slate wiped clean. If, instead, defendant fails to `perform[] satisfactorily in [his] assigned program, `is not benefiting from education, treatment, or rehabilitation, or engages in additional criminal behavior, `the court shall render a finding of guilt to the charge or charges pled, enter judgment, and schedule a sentencing hearing as otherwise provided in this code. (§ 1000.3, 3d par., italics added.) Only following entry of judgment pursuant to section 1000.3 will a judgment exist from which defendant can appeal. [¶]. . . Because a deferred entry of judgment is neither a final judgment nor listed in section 1237 as one of the types of orders deemed to be final judgments for purposes of appeal, we would diverge from that sections plain meaning were we nevertheless to conclude defendant was entitled to appeal. And, although section 1237.5 lists the special conditions that will permit an appeal from a `judgment of conviction following a plea of nolo contendere, that section has no application when, as here, there is not, as yet, a judgment of conviction." (Mazurette, supra, 24 Cal.4th at p. 794.)
In In re Mario C. (2004) 124 Cal.App.4th 1303, a minor who had been granted deferred entry of judgment argued that Mazurette should not apply in juvenile cases. The argument was rejected (id. at pp. 1308-1311), but the court further noted it was not "convinced that review by extraordinary writ is categorically foreclosed to one in the minors position." (Id. at p. 1311.) Nevertheless, the court did not reach the issue because the minor had not raised it or shown that the conditions for writ relief were present. (Ibid.)
"An extraordinary writ will issue only when we `find that it is . . . "necessary to protect a substantial right and [then] only when it is shown that some substantial damage will be suffered by petitioner if said writ is denied." [Citation.] [Citations.]" (In re Mario C., supra, 124 Cal.App.4th at p. 1312.) Here, as in Mario C., "nothing in this record justifies the extraordinary step of construing the notice of appeal as an application for extraordinary relief, because there is no basis to conclude that a reversal of the order he challenges would `protect a substantial right or avert `some substantial damage that `will be suffered by [defendant] if said writ is denied. [Citation.]" (Id. at p. 1313.) If defendant fails to complete the deferred entry of judgment program, a judgment will be entered and defendant can appeal denial of his suppression motion at that time. (Mazurette, supra, 24 Cal.4th at p. 794.)
DISPOSITION
The appeal is dismissed.
We concur:
ROTHSCHILD, J.
MILLER, J. --------------- Notes: Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.