Opinion
C088624
11-25-2019
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY DOUGLAS BROTHERS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CR-000537)
Defendant Anthony Douglas Brothers pleaded guilty to drug and weapons charges. Prior to waiving a preliminary hearing and entering his guilty plea, defendant's motion to suppress evidence had been denied. Although he had filed a renewed motion the day of his plea, it was never adjudicated.
Defendant now contends: (1) the trial court abused its discretion when it denied his request to continue the sentencing hearing; and (2) remand is required so that he may properly renew his motion to suppress and thus obtain the benefit of his plea agreement, which contemplated preservation of his right to appeal the denial of that motion.
We shall dismiss the appeal for lack of a certificate of probable cause.
BACKGROUND
Defendant unlawfully possessed methamphetamine while armed with a loaded handgun and carried a concealed dirk or dagger. On July 25, 2017, the trial court denied defendant's motion to suppress evidence, brought prior to his preliminary hearing. That same day, defendant and his counsel signed a written waiver of preliminary hearing.
On September 21, 2018, defendant filed a renewed motion to suppress. That same day, defendant and his attorney signed a written plea agreement. Without having secured a ruling on the renewed suppression motion, defendant pleaded guilty to one count of possession of methamphetamine while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a); count I), and one count of carrying a concealed dirk or dagger (Pen. Code, § 21310; count VI) in exchange for a stipulated prison sentence of four years eight months. The change of plea form again waived a preliminary hearing, but noted defendant "will not" waive his "appellate rights." During the plea hearing, defense counsel stated that the prosecution's offer was for the stipulated prison term with "an opportunity to notice of appeal on the search and seizure issue."
Further undesignated statutory references are to the Penal Code.
At the November 5, 2018 sentencing hearing, defense counsel requested a continuance. As relevant here, counsel argued that he needed time to further investigate potential grounds for withdrawing defendant's plea as well as grounds for renewing the motion to suppress. The trial court denied the continuance, and counsel then moved orally to withdraw the plea. The prosecutor opposed the motion; apparently neither the lawyers nor the court remembered that a renewed motion to suppress had already been filed less than two months prior to the sentencing hearing but had not been ruled on. The court denied the motions to continue sentencing and withdraw the plea and sentenced defendant as stipulated.
Defendant timely appealed. His notice of appeal purported to seek review of the denial of his motion to suppress, thus he did not request or obtain a certificate of probable cause. But the issues raised on appeal do not concern the propriety of the denial of his motion to suppress. Instead, defendant challenges the denial of the motion to continue sentencing and asks for remand to properly renew his motion to suppress in order to effectuate the plea agreement, which he argues preserved his right to appeal from the motion's denial. The Attorney General argues the claims are not cognizable without a certificate of probable cause.
We asked the parties to submit supplemental briefing clarifying their positions in light of the fact that defendant had indeed filed a renewed his motion to suppress but had failed to obtain a ruling on that motion before judgment was entered. The parties agree that the mere filing of the renewed motion did not preserve defendant's right to review of the motion's denial on appeal. Although defendant argues that his claims on appeal challenge only aspects of the judgment that are cognizable without a certificate of probable cause, we disagree, as we next explain.
DISCUSSION
As a general rule, a criminal defendant who enters a guilty or no contest plea with a stipulated sentence pursuant to a negotiated plea agreement, as did defendant here, may not challenge that sentence on appeal unless he first obtains a certificate of probable cause from the trial court. (§ 1237.5; People v. Cuevas (2008) 44 Cal.4th 374, 376-377, 379-380.) This requirement is strictly enforced. (In re Chavez (2003) 30 Cal.4th 643, 652-657.) Two types of issues may be raised after such a plea absent a certificate: "(1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed." (People v. Panizzon (1996) 13 Cal.4th 68, 74.)
As defendant conceded in his supplemental brief, the first exception does not apply to him because he did not obtain a ruling on his renewed motion to suppress, which would have preserved his right to appellate review. As to the remaining exception, "the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5." (People v. Panizzon, supra, 13 Cal.4th at p. 76.)
We have applied this test to a claim similar to defendant's claim here. In that case, the defendant argued that the trial court wrongly failed to grant him a continuance of his sentencing to allow him to determine whether the victim's recantation provided a basis to withdraw his plea. We held that the motion and the challenge to its denial were in substance attacks on the validity of the plea and a certificate of probable cause was necessary to pursue the appeal. (People v. Emery (2006) 140 Cal.App.4th 560, 564-565.)
Here, defendant claims renewal of his motion to suppress was the primary reason for his request for a continuance, arguing that he does not "seek a remand so that he can withdraw his plea." Rather, he claims he seeks a remand "so that the parties can, in some fashion, enable him to realize the full benefit of his bargain - enabling him to appeal the denial of his motion to suppress." But when given the opportunity to argue for a continuance at the hearing, defense counsel argued that "there were some issues that, frankly, weren't really looked at. Whether or not we could reopen a 1538.5 because of new evidence? Those sorts of things." He then went on to explain that defendant, "at this point in time, feels that his plea wasn't provident . . ." and wanted "more time for me to explain to him what the basis of withdrawing the plea are [sic] and whether or not we can do that . . . . And . . . the ramifications of us withdrawing the plea."
After the trial court denied the continuance but allowed counsel to make an oral argument to withdraw the plea, counsel argued that defendant should be permitted to withdraw the plea "due to a lack of communication" between defense counsel and defendant and later added that he thought there might be a basis (in the form of late discovery) for "reopening the 1538.5."
Given that the focus of both arguments was primarily on defendant's dissatisfaction with his plea, coupled with the fact that a renewed motion to suppress had already been made at the time of the argument, it is clear that the primary (if not the sole) purpose for the continuance was to allow defendant time to explore withdrawing his plea. This is an attack on the validity of the plea. Accordingly, because defendant failed to obtain a certificate of probable cause, he may not challenge the trial court's ruling on appeal. (See People v. Emery, supra, 140 Cal.App.4th at pp. 564-565.) His challenge to the denial of the continuance is not cognizable.
Defendant indicates in his reply brief that his remedy may be to file a petition for a writ of habeas corpus based on ineffective assistance of counsel. Our dismissal of his appeal does not foreclose him from doing so. --------
Defendant also seeks remand to effectuate the plea agreement, arguing that because the agreement provided that he did not waive his "appellate rights," we must remand so he can properly renew his motion to suppress and then appeal from that ruling if it is denied.
We agree with the parties that defendant's motion to suppress was not properly renewed, as it was never decided. "If the trial court's failure to hear or rule on the new trial motion appears to be inadvertent, the defendant must make some appropriate effort to obtain the hearing or ruling. [Citations.] ' "[W]here the court, through inadvertence or neglect, neither rules nor reserves its ruling . . . the party who objected must make some effort to have the court actually rule. If the point is not pressed and is forgotten, [the party] may be deemed to have waived or abandoned it, just as if he had failed to make the objection in the first place." ' [Citations.]" (People v. Braxton (2004) 34 Cal.4th 798, 813.) But defendant presents us with no authority that would allow us to decide a non-cognizable claim merits remand to effectuate a plea agreement.
Defendant asks this court to conditionally vacate the judgment so that he may file a renewed motion in the trial court and, if successful, obtain dismissal of all charges against him. Two of these charges are counts to which he has already pleaded guilty. Defendant is not merely seeking to enforce his plea agreement or challenge the trial court's failure to comply with the terms of the agreement; his actual challenge is to his conviction by guilty plea. He has failed to preserve his right to appellate review of the denial of his motion to suppress by securing a ruling on his renewed motion so that he could seek appellate review without a certificate of probable cause. (See People v. Braxton, supra, 34 Cal.4th at p. 813.) And he has failed to obtain a certificate of probable cause that would allow him to challenge the validity of his plea. His request to vacate the judgment so that he can bring another renewed motion to suppress is a challenge to the validity of the plea. Accordingly, the request is not cognizable without a certificate of probable cause.
DISPOSITION
The appeal is dismissed.
/s/_________
Duarte, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Robie, J.