Opinion
D073217
07-10-2018
THE PEOPLE, Plaintiff and Respondent, v. PABLO ALVAREZ, Defendant and Appellant.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD272755) APPEAL from a judgment of the Superior Court of San Diego County, Michael S. Groch, Judge. Affirmed. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Pablo Alvarez pleaded guilty to being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)) and battery (§ 242). Pursuant to the plea agreement, the court dismissed all other charges and allegations. Prior to sentencing, defense counsel notified the court that Alvarez was requesting to withdraw his plea and wanted a Marsden hearing. The court held an in camera hearing and denied Alvarez's request to substitute counsel. Thereafter, the court asked defense counsel whether a basis existed for Alvarez to withdraw his plea. Defense counsel told the court that she had looked into the issues raised by Alvarez and concluded that "no legal basis" existed to move to withdraw his plea. The court suspended imposition of sentence and placed Alvarez on three years of supervised probation, subject to certain terms and conditions, including 16 days in local custody. The court awarded Alvarez 16 days presentence credit for time served, consisting of eight days each of actual custody time and conduct credit. The court imposed drug and alcohol probation conditions over defense counsel's objection.
The record is inconsistent in the spelling of defendant's last name, sometimes spelling it "Alverez" and sometimes "Alvarez." Because Defendant spelled his name "Alvarez" both in the plea hearing below and on his notice of appeal, we will use that spelling.
Undesignated statutory references are to the Penal Code.
People v. Marsden (1970) 2 Cal.3d 118.
Acting in propria persona, Alvarez filed a notice of appeal and requested a certificate of probable cause based on: (1) ineffective assistance of counsel/denial of motion to withdraw plea; (2) denial of right to counsel of his choice; (3) denial of due process; and (4) his incompetence at the time of the plea. The trial court denied Alvarez's request for issuance of a certificate of probable cause. We issued an order limiting Alvarez's appeal to (1) the validity of any suppression motion denials, or (2) matters that arose after the plea was entered and that do not affect the validity of his guilty plea.
A defendant whose request for a certificate of probable cause is denied may seek review of the propriety of the trial court's ruling by filing a timely petition for writ of mandate. (People v. Nigro (1974) 39 Cal.App.3d 506, 511.) Where, as here, there is no statutorily prescribed time within which to seek writ review of an order, a writ petition ordinarily will be denied as untimely if it is not filed within the time prescribed for an appeal had the order been appealable. (Nelson v. Superior Court (1986) 184 Cal.App.3d 444, 450; People v. Superior Court (Kizer) (1984) 155 Cal.App.3d 932, 934.) An appeal in a criminal case must be filed within 60 days after rendition of the order being appealed. (Cal. Rules of Court, rule 8.308(a).) The order denying Alvarez's request for a certificate of probable cause was filed December 5, 2017. Alvarez failed to timely file a petition for writ of mandate to challenge the denial of his request for a certificate of probable cause. --------
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. She presented no argument for reversal, but asked this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has identified the following issues that "might arguably support the appeal" (Anders v. California (1967) 386 U.S. 738, 744 (Anders)): whether (1) the trial court erred in denying Alvarez's Marsden motion to replace appointed counsel for purposes of investigating and filing a motion to withdraw his plea; (2) Alvarez intelligently and voluntarily entered his plea; (3) a sufficient factual basis existed for the plea; (4) Alvarez received ineffective assistance of counsel in failing to move to withdraw his plea; and (5) the court abused its discretion by imposing drug and alcohol conditions of probation. We offered Alvarez the opportunity to file a brief on his own behalf, and he has not responded.
In the absence of a certificate of probable cause, we may not consider the validity of the plea; whether the change of plea was knowingly, intelligently, or voluntarily made; or whether defendant was deprived of effective assistance of counsel. (§ 1237.5; see also People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245.) Alvarez's first three issues that might arguably support the appeal arose prior to his plea and effectively challenge the validity of his plea. Accordingly, they are not reviewable in the absence of a certificate of probable cause. (Stubbs, at pp. 244-245.) In any event, we have reviewed the Marsden hearing and the record pertaining to Alvarez's guilty plea. The record does not support an assertion that there was no factual basis for the plea, that Alvarez's plea was not voluntary, or that his counsel failed to act in a manner expected of other reasonably competent attorneys. (Strickland v. Washington (1984) 466 U.S. 668, 688.)
With respect to other potential sentencing or post-plea issues that do not challenge the validity of the plea, we have examined the record and are satisfied that appellate counsel has fully complied with her responsibilities and there are no arguable issues. (See People v. Kelly (2006) 40 Cal.4th 106, 118-119; Wende, supra, 25 Cal.3d at pp. 441-442.) Alvarez's history includes regular marijuana use, a prior alcohol "problem," and prior convictions for driving under the influence and possessing marijuana for sale. On this record, the court's imposition of probation conditions that he abstain from alcohol and drugs and, "if directed," submit to alcohol testing and complete a residential treatment program, were reasonably related to his future criminality and within the sound discretion of the trial court. (See People v. Lent (1975) 15 Cal.3d 481, 486; People v. Balestra (1999) 76 Cal.App.4th 57, 68-69 [upholding a probation condition requiring submission to alcohol and drug testing at the discretion of the probation officer].) Competent counsel has represented Alvarez on this appeal.
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J. WE CONCUR: HALLER, J. O'ROURKE, J.