Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of the County of Los Angeles, No. A954619 Peter Espinoza, Judge.
Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
Defendant and appellant Brian Brim (defendant) appeals from the trial court’s order denying his motion to vacate his conviction. On appeal, his appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) requesting that this court independently review the entire record to determine if there are any issues which if resolved in defendant’s favor, would require reversal or modification of the judgment. Accordingly, we notified defendant that he could brief any grounds of appeal, contentions, or arguments he wanted us to consider. In a response, defendant submitted a supplemental brief contending that because he submitted a request to the trial court for a certificate of probable cause, this court can review his challenge to the validity of his plea and direct the trial court to vacate that plea. Defendant also requests that new appellate counsel be appointed to represent him on appeal because his current counsel mistakenly concluded that he had not requested a certificate of probable cause from the trial court and erroneously determined that he had failed to explain in the trial court the reasons for the considerable delay in challenging the validity of his plea.
Based on our consideration of defendant’s submission and independent review of the record, we hold that because the trial court did not issue the requested certificate of probable cause, defendant cannot challenge on appeal the validity of his plea and that there are no other arguable issues on appeal. As there are no arguable issues on appeal, defendant’s request for appointment of new appellate counsel is denied. We therefore dismiss the appeal.
PROCEDURAL BACKGROUND
On June 30, 1988, defendant pleaded guilty to one count of violating Health and Safety Code section 11351, and was subsequently sentenced to a two-year prison term.
In December 2001, defendant filed a request for relief in the trial court that apparently sought to challenge the validity of his plea. On December 26, 2001, the trial court considered and denied that request, finding that defendant “entered his plea voluntarily and knowingly” and concluding that there was “no right to appeal after a guilty plea.”
On September 12, 2002, the trial court read and considered defendant’s “motion alleging breach of the ‘plea agreement.’” The trial court denied the motion, finding that defendant did not meet his “burden of demonstrating ineffective assistance of counsel in connection with his guilty plea.”
On October 15, 2002, the trial court read and considered defendant’s petition for a writ of coram nobis. The trial court denied the petition because it was untimely, made on a ground—ineffective assistance of counsel—that was not a basis for a writ of coram nobis, and a restatement of the petition denied on December 26, 2001.
On July 25, 2008, the trial court read and considered a second petition for a writ of coram nobis. The trial court denied the petition on the grounds that defendant had failed to explain the delay in seeking relief and failed to show that a reasonable person in defendant’s position would not have pleaded guilty if he or she had been properly advised of his or her rights by the trial court.
On July 29, 2010, defendant moved the trial court to vacate his conviction. On October 22, 2010, the trial court heard argument on that motion and denied it. On October 26, 2010, defendant filed a notice of appeal from, inter alia, the trial court’s October 22, 2010, order denying his motion to vacate his conviction.
DISCUSSION
Defendant correctly points out that he requested a certificate of probable cause from the trial court, but then erroneously concludes that the request alone is sufficient to allow him to challenge the validity of his plea on appeal. As explained below, a defendant cannot challenge on appeal the validity of a plea unless the trial court executes and files a certificate of probable cause.
The right to appeal following a guilty or no contest plea is controlled by Penal Code section 1237.5. “On its face, section 1237.5 precludes an appeal unless the defendant files a written statement ‘showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings’ and the trial court issues a certificate of probable cause. ‘“Despite this broad language, we have held that two types of issues may be raised on appeal following a guilty or nolo plea without the need for a certificate: issues relating to the validity of a search and seizure, for which an appeal is provided under [Penal Code] section 1538.5, subdivision (m), and issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.” (People v. Buttram (2003) 30 Cal.4th 773, 780 [134 Cal.Rptr.2d 571, 69 P.3d 420].)’ (People v. Shelton (2006) 37 Cal.4th 759, 766 [37 Cal.Rptr.3d 354, 125 P.3d 290].) [¶] ‘The statutory requirement and its exceptions are embodied in rule 30(b)(4) [now rule 8.304(b)] of the California Rules of Court, which provides that on appeal in a criminal case from a superior court judgment after a plea of guilty or nolo contendere, a defendant must apply for and obtain a certificate of probable cause as required by Penal Code section 1237.5 unless “the notice of appeal states that the appeal is based on: [¶] (A) the denial of a motion to suppress evidence under Penal Code section 1538.5, or [¶] (B) grounds that arose after entry of the plea and do not affect the plea's validity.”’ (People v. Shelton, supra, 37 Cal.4th at p. 766.) [¶] ‘It has long been established that issues going to the validity of a plea require compliance with section 1237.5. (People v. Ward (1967) 66 Cal.2d 571, 574 [58 Cal.Rptr. 313, 426 P.2d 881] (Ward).) Thus, for example, a certificate must be obtained when a defendant claims that a plea was induced by misrepresentations of a fundamental nature (People v. DeVaughn (1977) 18 Cal.3d 889, 896 [135 Cal.Rptr. 786, 558 P.2d 872]) or that the plea was entered at a time when the defendant was mentally incompetent (People v. Laudermilk (1967) 67 Cal.2d 272, 282 [61 Cal.Rptr. 644, 431 P.2d 228]). Similarly, a certificate is required when a defendant claims that warnings regarding the effect of a guilty plea on the right to appeal were inadequate. (People v. Kaanehe (1977) 19 Cal.3d 1, 8 [136 Cal.Rptr. 409, 559 P.2d 1028].)’ (People v. Panizzon (1996) 13 Cal.4th 68, 76 [51 Cal.Rptr.2d 851, 913 P.2d 1061].)” (People v. McEwan (2007) 147 Cal.App.4th 173, 177-178.)
Penal Code section 1237.5 provides as follows: “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.”
Here, the record does not reflect that the trial court executed and filed a certificate of probable cause in response to defendant’s request. Thus, the request itself was insufficient to allow defendant to challenge the validity of his plea.
Defendant did not challenge the propriety of the denial of his request for a certificate of probable cause. The only means of doing so is by a petition for writ of mandate. (In re Brown (1973) 9 Cal.3d 679, 683, disapproved and superseded by statute on other grounds as stated in People v. Mendez (1999) 19 Cal.4th 1084, 1092-1093, 1103-1104; 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, § 19, pp. 257-258.)
In addition to considering defendant’s submission, we examined the entire record to determine if there are any other arguable issues on appeal. Based on that independent review, we have determined there are no arguable issues on appeal. We are therefore satisfied that defendant’s appointed counsel has fully satisfied her responsibilities under Wende, supra, 25 Cal.3d 436.
Defendant’s supplemental brief also contends that his appointed counsel in the present appeal provided ineffective assistance by not raising on appeal his request for a certificate of probable cause and his explanation for the delay in challenging the validity of his plea. Because we have concluded that defendant cannot challenge the validity of his plea on appeal and that there are no other arguable issues, defendant’s claim of ineffective assistance of appellate counsel has no merit.
DISPOSITION
The appeal is dismissed.
We concur: TURNER, P. J, KRIEGLER, J.