Opinion
H045992
11-25-2019
THE PEOPLE, Plaintiff and Respondent, v. MELISSA LILLIAN PANIAGUA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 17CR001058)
Defendant Melissa Lillian Paniagua pleaded no contest to second degree murder and admitted she personally used a firearm in the commission of the offense. Paniagua later moved to withdraw her plea on grounds that her attorney had provided ineffective assistance of counsel. The trial court denied the motion and imposed a total term of 25 years to life in prison.
Paniagua sought a certificate of probable cause but the trial court denied it. Paniagua then filed this appeal claiming the trial court erred by denying the motion to withdraw her plea. The Attorney General contends we must dismiss the appeal for failure to obtain a certificate of probable cause. We agree and dismiss the appeal.
Paniagua also petitions this court for a writ of habeas corpus on the same grounds. (In re Paniagua, H047144.) We deny her petition in a separate order on this date.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural Background
The complaint charged Paniagua with willful, deliberate, and premeditated murder. (Pen. Code, § 187, subd. (a).) The complaint further alleged Paniagua personally used a firearm in the commission of the offense. (§ 12022.5, subd. (a).) At the preliminary hearing, the trial court found probable cause supported the charges and held Paniagua to answer. At the request of the prosecutor, the court further found probable cause would support an allegation that Paniagua had personally and intentionally discharged a firearm, causing great bodily injury or death, under section 12022.53, subdivision (d).
Subsequent undesignated statutory references are to the Penal Code.
The information charged Paniagua with the same offense and enhancement as charged in the complaint. Under a plea agreement, Paniagua pleaded no contest to second degree murder and admitted the personal use enhancement in exchange for a total term of 25 years to life.
Paniagua then retained new counsel and filed a motion to withdraw her plea under section 1018. She claimed her prior attorney had provided ineffective assistance because he had misinformed her she was facing a potential term of 50 years to life when her maximum exposure was only 35 years to life based on the information. In a supporting declaration, Paniagua claimed her attorney had advised her to accept a plea agreement for 25 years to life based on her exposure to a term of 50 years to life. Paniagua stated that if she had been informed her maximum exposure was only 35 years to life, she would have rejected the plea agreement and she would have insisted on taking the case to trial. She further alleged that her attorney never told her the court could strike the firearm enhancement, which would have resulted in a potential term of 15 years to life.
The prosecution opposed the motion on the ground that Paniagua's attorney had properly advised her on her maximum exposure. The prosecution pointed out that the trial court had found probable cause at the preliminary hearing to support an allegation under section 12022.53, subdivision (d). The prosecutor asserted that she and Paniagua's prior attorney had an understanding that if Paniagua did not accept the offer for 25 years to life, the prosecutor would amend the information to add an enhancement under section 12022.53, subdivision (d) on the day of trial. Such an amendment would have raised Paniagua's exposure to 50 years to life, just as her prior attorney had advised her.
At a hearing on the matter, the trial court found that it was common practice for the prosecutor's office to wait until the time of trial to amend an information to add an enhancement under section 12022.53, subdivision (d). The prosecutor confirmed it was her intent to so amend the information against Paniagua in the event she did not accept the plea offer. As to the alleged failure by Paniagua's attorney to advise her on the possibility the trial court could strike an enhancement, the court found it would be "very unusual" for the court to strike such an enhancement. Accordingly, the trial court found Paniagua's counsel did not provide deficient performance, and the court denied the motion to withdraw the plea.
In accord with the plea agreement, the trial court imposed a total term of 25 years to life, consisting of 15 years to life for second degree murder consecutive to a 10-year term for the firearm enhancement under section 12022.5, subdivision (a).
Together with her notice of appeal, Paniagua filed a request for a certificate of probable cause, citing the same grounds asserted in her motion to withdraw the plea. The trial court summarily denied the request.
This statement of facts is based on evidence adduced at the preliminary hearing. --------
On July 20, 2017, the police were dispatched to a report of a verbal argument at a residence in Castroville. There they found the victim, Cynthia M., lying on the floor gasping for air. The victim's daughter was also present. The police spoke with the daughter while emergency medical technicians treated the victim. The victim died about 30 minutes later, whereupon the police observed what appeared to be a bullet wound in her left ribcage. The parties stipulated that she died from a single gunshot wound.
The victim's daughter told police that her mother had been in a physical altercation with a childhood friend named Sylvia Navarro earlier that day, after which Navarro left the residence. Later that day, another woman—later identified as Paniagua, who is Navarro's half-sister—appeared at the door of the residence. The daughter went to a rear bedroom to call 911 while Paniagua and the victim argued. About four minutes later, the daughter heard a gunshot, whereupon she ran into the living room and found her mother leaning against a wall. The daughter saw Paniagua running down the street toward Highway 1.
II. DISCUSSION
Paniagua contends the trial court erred by denying her motion to withdraw her plea because she set forth good cause to show her attorney provided ineffective assistance of counsel by misinforming her on her maximum exposure. The Attorney General contends the appeal must be dismissed because Paniagua failed to obtain a certificate of probable cause.
"No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court." (§ 1237.5.) An appeal from the denial of a motion to withdraw a plea falls within the ambit of this section. (People v. Johnson (2009) 47 Cal.4th 668, 679.) Failure to obtain the required certificate requires dismissal of the appeal. (People v. Mendez (1999) 19 Cal.4th 1084, 1099; Cal. Rules of Court, 8.304.)
Paniagua concedes that her appeal follows a plea of no contest, and that she did not obtain a certificate of probable cause. She contends, however, that the trial court's denial of her request for a certificate of probable cause constitutes a ground for appeal because the court abused its discretion by denying the request. The Attorney General responds that no appeal lies from the denial of a certificate of probable cause, and that Paniagua should have petitioned for a writ of mandate instead. The Attorney General further points out that Paniagua's deadline for pursuing such a writ has passed. Accordingly, the Attorney General argues, her appeal must be dismissed.
We agree with the Attorney General. "[W]here, as here, a certificate of probable cause has been denied, the appeal is not operative and the denial of the certificate must be reviewed by writ of mandate." (People v. Castelan (1995) 32 Cal.App.4th 1185, 1188.) Furthermore, the deadline for filing a timely petition of mandate has passed. "It is well established that a petition for writ of mandamus must be filed within the same statutory period as prescribed for appeals." (People v. Municipal Court (Mercer) (1979) 99 Cal.App.3d 749, 752.) In her reply brief, Paniagua requests that we treat her appeal as a petition for a writ of mandate. (See People v. Nigro (1974) 39 Cal.App.3d 506, 511 [treating appeal as a writ of mandate but concluding the certificate of probable cause was properly denied].) We decline to exercise our discretion to do so, as it does not appear from the record that the trial court abused its discretion in denying the certificate.
Accordingly, given the absence of a certificate of probable cause, we conclude this appeal must be dismissed.
III. DISPOSITION
The appeal is dismissed.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Grover, J. /s/_________
Danner, J.