Opinion
F041821.
7-30-2003
THE PEOPLE, Plaintiff and Respondent, v. JOHN ALLEN MAZURAK, Defendant and Appellant.
Paul V. Carroll, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, and Carlos A. Martinez, Deputy Attorney General, for Plaintiff and Respondent.
Appellant John Allen Mazurak pled no contest on October 22, 1991, to one count of feloniously cutting a utility line (Pen. Code, § 591). Mazurak appealed to this court. On March 6, 1992, we found an error in sentencing and remanded the case with instructions that Mazurak could withdraw his plea should he choose to do so. Mazurak was permitted to withdraw his plea. On May 26, 1992, Mazurak pled no contest to a misdemeanor count of cutting a utility line. The court sentenced Mazurak to 365 days in jail and granted total credits for time already served.
On March 26, 2002, Mazurak filed a motion to vacate and set aside the misdemeanor conviction on the ground he was not advised of his constitutional rights prior to admitting the misdemeanor allegation. A copy of the clerks minutes showed he was given his constitutional rights. Boxes in the form used for the court minutes, however, were not checked for the specific Boykin/Tahl admonitions given by the trial court. The basis of Mazuraks motion was that the absence of check marks for the specific Boykin/Tahl rights conclusively showed he was not given his constitutional rights prior to admitting the allegation.
Boykin v. Alabama (1969) 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709; In re Tahl (1969) 1 Cal.3d 122, 81 Cal. Rptr. 577, 460 P.2d 449.
The People filed written opposition to Mazuraks motion. On September 11, 2002, the trial court appointed the public defender to represent Mazurak. Declarations from the court clerk and the trial judge who took Mazuraks misdemeanor plea stated that Mazurak was given his constitutional rights prior to his admission of the misdemeanor allegation. The trial court denied Mazuraks motion on October 11, 2002, and he filed his notice of appeal on October 30, 2002.
Mazuraks appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court independently to review the record. (People v . Wende (1979) 25 Cal.3d 436, 158 Cal. Rptr. 839, 600 P.2d 1071.) The opening brief also includes the declaration of appellate counsel indicating that Mazurak was advised he could file his own brief with this court.
By letter of January 3, 2003, we invited Mazurak to submit additional briefing. Mazurak filed a brief challenging the presence of declarations in the clerks transcript from the court clerk and trial judge who took his plea to the misdemeanor. Mazurak contends the record fails to show he was advised of his constitutional rights.
We initially note that Mazurak has provided no legal basis for striking any portion of the record on appeal. We also note that the time for Mazurak to file his appeal after entering into the second plea agreement expired 11 years ago.
Without ruling on the merits of Mazuraks contention, we note that there appears to be evidence in the record to support the trial courts ruling on Mazuraks motion.
Most importantly, there is no certificate of probable cause in the instant action. Our review is therefore limited to suppression motions and sentencing issues. Mazurak is challenging the validity of his admission in 1993 that he committed a misdemeanor violation of Penal Code section 591. In effect, he is challenging the validity of the plea bargain and the plea itself. We have no jurisdiction to consider his contention on appeal. (See People v. Panizzon (1996) 13 Cal.4th 68, 74-79, 913 P.2d 1061; People v. Stewart (2001) 89 Cal.App.4th 1209, 1215-1220; People v. Young (2000) 77 Cal.App.4th 827, 830-832; see also People v. Mendez (1999) 19 Cal.4th 1084, 1093-1104, 969 P.2d 146.)
After independent review of the record, we have concluded no other reasonably arguable legal or factual argument exists.
The judgment is affirmed.