Opinion
NOT TO BE PUBLISHED
Santa Clara County Super.Ct.No. 188019.
Duffy, J.
In December 2009, defendant Khoi Dinh Huynh filed a motion to vacate judgment, seeking to set aside the 1997 judgment entered in 1997 after defendant pleaded no contest to nine felonies. He argued that the sentence imposed relative to his conviction of illegal possession of a firearm was unlawful. The court denied the motion. Defendant filed a timely purported notice of appeal. We have concluded that the order is nonappealable and will therefore dismiss the appeal.
The record does not provide any information from which to summarize the factual background concerning the offenses of which defendant was convicted.
An information filed on May 6, 1996, alleged eight counts of first degree burglary, a felony (Pen. Code, §§ 459/460, subd. (a); counts 1 through 8), and one count of illegal possession of a firearm by a convicted felon, a felony (§ 12021, subd. (a)(1); count 9). On January 16, 1997, defendant pleaded no contest to all nine felony counts on the condition that he would receive a prison sentence of not more than, but no less than, seven years and four months. The court minutes reflect that there was a factual basis for the plea based upon the preliminary examination transcript and police reports. On February 21, 1997, the court sentenced defendant to a prison term totaling seven years and four months. The record reflects that the court imposed a prison term of six years as to the count 1 conviction, a consecutive 16-month term as to the count 2 conviction, concurrent four-year terms as to each conviction for counts 3 through 8, and a concurrent two-year term as to the count 9 conviction.
Further statutory references are to the Penal Code unless otherwise stated.
On December 18, 2009, defendant, a self-represented litigant, filed a motion to vacate judgment. He argued that the sentence he received for the illegal firearm possession conviction (count 9)-which he erroneously argued to have been “a consecutive 16 month sentence”-was unlawful. He based this contention on the assertion that he was not a convicted felon at the time he was charged with illegal firearm possession; rather, in the prior case upon which that charge was founded (case no. 178698), defendant received probation and was convicted of misdemeanors. The court denied the motion on April 7, 2010, concluding that (1) defendant had received a two-year concurrent sentence for the firearm possession conviction, not a consecutive 16-month sentence as defendant claimed; and (2) because defendant received the precise sentence for which he had bargained in entering his plea of no contest in 1997, he could not raise a challenge that the evidence did not support one of the charges to which he had pleaded no contest. Defendant filed a timely purported notice of appeal from the order denying the motion.
DISCUSSION
We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief which stated the case and requested that this court independently review the record on appeal. (See People v. Wende (1979) 25 Cal.3d 436.) We notified defendant of his right to submit written argument on his own behalf within 30 days. We thereafter received defendant’s supplemental brief, filed June 29, 2010.
We determined that there was a preliminary issue of appealability that needed to be addressed. Since the issue of whether a matter is appealable goes to our jurisdiction (People v. Miller (2006) 145 Cal.App.4th 206, 212), we must address this issue even though it was not raised in the opening brief or in defendant’s supplemental brief. In advance of deciding the case, we asked that defendant show cause as to why this matter should not be dismissed because it is based upon an appeal from a nonappealable order. Defendant’s counsel responded with a letter stating that he was “unable to show cause why the appeal should not be dismissed.”
A ruling denying a motion to vacate judgment, although qualifying semantically as an “order made after judgment, affecting the substantial rights of the party” allowing for the taking of an appeal by the defendant under section 1237, subdivision (b), “ordinarily is not appealable when the appeal would merely bypass or duplicate appeal from the judgment itself. [Citation.] ‘In such a situation appeal from the judgment is an adequate remedy; allowance of an appeal from the order denying the motion to vacate would virtually give defendant two appeals from the same ruling and, since there is no time limited [sic] within which the motion may be made, would in effect indefinitely extend the time for appeal from the judgment.’ [Citation.]” (People v. Gallardo (2000) 77 Cal.App.4th 971, 981, quoting People v. Thomas (1959) 52 Cal.2d 521, 527.) There are several exceptions to this rule of nonappealability, “including a narrow exception when the record on appeal would not have shown the error, and an exception for attacks upon void judgments. [Citation.]” (Gallardo, at p. 981.)
The circumstances here do not fall within any exception to the rule of nonappealability. Further, the rationale of nonappealability discussed in Gallardo is applicable: Defendant could have easily filed a timely appeal from the judgment in 1997 and raised the same issue he asserted almost 13 years later in his motion to vacate judgment.
We therefore conclude that this is an appeal from a nonappealable order. Accordingly, we will dismiss the appeal.
DISPOSITION
The purported appeal from the order denying defendant’s motion to vacate judgment is dismissed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.