Opinion
A167597
11-29-2023
THE PEOPLE, Plaintiff and Respondent, v. MARCELO ARANCIBIA, Defendant and Appellant.
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. No. 22-SF-011080-A)
MARGULIES, J.
Defendant Marcelo Arancibia appeals from a judgment entered on his plea of no contest. His counsel has asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We conclude defendant's appeal must be dismissed because he did not obtain a certificate of probable cause.
We resolve this case by memorandum opinion under California Standards of Judicial Administration, section 8.1.
Defendant was charged by information with two felony counts of indecent exposure with a prior. (Pen. Code, § 314, subd. (1).) The information also alleged defendant had two prior serious or violent felony convictions (§ 1170.12, subd. (c)(1)) and two prior offenses within the meaning of section 1203, subdivision (e)(4).
All statutory references are to the Penal Code.
Defendant pleaded no contest to one of the counts of indecent exposure and the prior serious or violent felony conviction under section 1170.12, subdivision (c)(1). At the hearing on the plea deal, defendant confirmed he understood his rights. Defense counsel then stipulated to the factual basis for the charge "[b]ased on [his] review of the case." In accordance with the plea agreement, the trial court struck the prior serious or violent felony conviction under section 1170.12, subdivision (c)(1), and sentenced him to a total term of two years in prison. The remaining counts and special allegations were dismissed.
Defendant subsequently filed a notice of appeal and a request for a certificate of probable cause, claiming he suffered from schizophrenia, had diminished mental capacity, and had previously been found incompetent to stand trial. The court denied the request for a certificate of probable cause. Defendant did not seek appellate review of the denial of a certificate of probable cause. (People v. Johnson (2009) 47 Cal.4th 668, 676 [a defendant may challenge the wrongful denial of a certificate of probable cause by petition for writ of mandate].)
Defendant's appointed counsel filed a Wende brief, which noted (1) the record does not contain a description of the factual basis behind the charges and conviction, and (2) defendant's mental capacity issues. The brief also included a declaration that counsel had written to defendant, provided a copy of the brief that counsel was filing, and informed defendant of his right to file a supplemental brief. Defendant subsequently filed a one-page letter asserting (1) he did not have any problems with himself, (2) indecent exposure should be a misdemeanor and not a felony, and (3) he had no prior strikes.
We note the court struck the special allegation regarding prior serious or violent felonies, and defendant was not sentenced based on having a prior strike.
We have examined the entire record and are satisfied that defendant's attorney has fully complied with his responsibilities and that no arguable issues exist. (Wende, supra, 25 Cal.3d 436.) Specifically, nothing in the appellate record indicates defendant has any basis to challenge his plea which would not be barred by his failure to obtain a certificate of probable cause.
"Under section 1237.5, a defendant generally may not appeal from a judgment of conviction following a guilty or no contest plea, unless he files with the trial court a statement 'showing reasonable, constitutional, jurisdictional, or other grounds going to the legality of the proceedings' (§ 1237.5, subd. (a)), and the trial court executes and files 'a certificate of probable cause for such appeal with the clerk of the court' (§ 1237.5, subd. (b)). [Citations.]' . . . The requirements of section 1237.5 . . . must be strictly applied. [Citation.] The Supreme Court has disapproved the practice of applying the rule loosely in order to reach issues whose consideration would otherwise be precluded.'" (People v. Mashburn (2013) 222 Cal.App.4th 937, 941, fn. omitted; see also Cal. Rules of Court, rule 8.304(b)(3).) "In the absence of a certificate" of probable cause, an "appeal is inoperative." (People v. Stubbs (1998) 61 Cal.App.4th 243, 245.) "[T]he Court of Appeal 'generally may not proceed to the merits of the appeal, but must order dismissal ....'" (In re Chavez (2003) 30 Cal.4th 643, 651.)
Here, any argument regarding the sufficiency of the court's inquiry into the factual basis for the charges or plea, or defendant's mental health, goes to the validity of the plea-a challenge barred by the lack of a probable cause certificate. (See People v. Zuniga (2014) 225 Cal.App.4th 1178, 1187 ["defendant's challenge to the factual basis for the no contest plea 'is properly viewed as a challenge to the validity of the plea itself' "]; People v. Mendez (1999) 19 Cal.4th 1084, 1100 ["mental incompetence issues are indeed certificate issues, inasmuch as they are questions going to the legality of the proceedings, and, specifically, the validity of his guilty plea"].)
The appeal is dismissed.
WE CONCUR: HUMES, P. J. GETTY, J. [*]
[*]Judge of the Solano County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.