Opinion
G055746
01-05-2018
FELIPE VASQUEZ LIMON, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest.
Law Offices of Paul C. Supple and Paul C. Supple for Petitioner. Xavier Becerra, Attorney General, and Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. C73399) OPINION Original proceedings; petition for a writ of mandate to file a notice of appeal. Petition granted. Law Offices of Paul C. Supple and Paul C. Supple for Petitioner. Xavier Becerra, Attorney General, and Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Real Party in Interest.
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Before O'Leary, P. J., Ikola, J., and Thompson, J.
Petitioner Felipe Vasequez Limon filed a petition for writ of mandate challenging respondent court's refusal to file his notice of appeal to challenge the order denying his motion to vacate the judgment pursuant to Penal Code section 1016.5. The petition is granted.
All further statutory references are to the Penal Code unless otherwise indicated.
In 1989, petitioner pleaded guilty to possession of a controlled substance for sale or transportation. Although the conviction was dismissed in 2001 pursuant to section 1203.4, in 2017, petitioner filed a motion to vacate the judgment on the basis that he was not advised of the immigration consequences of the plea as required in section 1016.5. When the trial court denied the motion on August 7, 2017, petitioner filed a timely notice of appeal on September 28, 2017, challenging the validity of the plea or admission, and "the error [ ] during the procurement of the plea as it relates [to] the required admonition pursuant to CA Penal Code Section 1016.5." Although a certificate of probable cause was not required to challenge the order denying the motion to vacate, a request for certificate of probable cause was attached to the notice of appeal. Because the Rules of Court require respondent court to "sign and file either a certificate of probable cause or an order denying the certificate" within 20 days after the defendant files a statement, (Cal. Rules of Court, rule 8.304(b)(2)) respondent court signed an order denying the request for certificate of probable cause on the basis that a certificate of probable cause was not required to appeal from the denial of the motion to vacate pursuant to section 1016.5.
On the court's own motion and for good cause, the court takes judicial notice of the record in Orange County Superior Court case number C73399. (Evid. Code, § 452.) --------
On October 25, 2017, respondent court filed and transmitted correspondence to petitioner's counsel stating the notice of appeal filed on September 28, 2017, had been "marked inoperative" and advised petitioner "the record on appeal will not be prepared." The correspondence stated further, "The Court has denied a 'Certificate of Probable Cause.'"
Citing Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180, this court invited real party in interest to file opposition to the petition. In response to this court's invitation, the Attorney General filed opposition that explains the superior court correctly denied the request for certificate of probable cause because a certificate of probable cause is not required to challenge an order denying a motion to vacate pursuant to section 1016.5. The Attorney General also contends the deputy clerk correctly refused to mark appellant's appeal operative because counsel mistakenly marked the box on the notice of appeal that petitioner was challenging the validity of the plea following entry of a guilty plea and therefore this court may liberally construe the notice of appeal as an order made after judgment affecting the substantial rights of the party under subdivision (b) of section 1237, which does not require a certificate of probable cause.
The court need not liberally construe the notice of appeal. The notice of appeal states it is based on "the procurement of the plea as it relates [to] the required admonition pursuant to . . . Section 1016.5." A certificate of probable cause is not required to appeal from an order denying a motion to vacate a conviction pursuant to section 1016.5. (People v. Arriaga (2014) 58 Cal.4th 950, 960.)
The petition is granted. The Clerk of the Superior Court is ordered to file the September 28, 2017 notice of appeal. Further proceedings, including the preparation of the record on appeal, are to be conducted according to the applicable rules of court. In the interest of justice, the opinion in this matter is deemed final as to this court forthwith and the clerk of this court is directed to issue the remittitur forthwith.