Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. Nos. FCR222031, FCR237012, FCR240015, FCR243807
RIVERA, J.
Defendant Eddie Dean Carson appeals judgments entered in four criminal cases. The Attorney General has moved to dismiss on the ground that defendant did not obtain a certificate of probable cause. We dismiss the appeal.
I. BACKGROUND
In the first of the cases on appeal, Solano County case No. FCR222031, defendant pled no contest to one count of misdemeanor petty theft on September 28, 2006 (Pen. Code, § 484, subd. (a)), and was placed on three years’ probation.
All undesignated statutory references are to the Penal Code.
In October 2006, defendant was charged with felony receiving stolen property (§ 496, subd. (a)) in Solano County case No. FCR237012. Four months later, in February 2007, he was charged in Solano County case No. FCR240015 with possession of methamphetamine for sale. (Health & Saf. Code, § 11378.)
A fourth case against defendant was filed on June 19, 2007. The complaint in that case, Solano County case No. 243807, charged him with possession of heroin (Health & Saf. Code, § 11350, subd. (a)); unauthorized possession of a hypodermic needle or syringe (Bus. & Prof. Code, § 4140); disobedience to an officer (Veh. Code, § 2800); resisting, obstructing, or delaying a peace officer (§ 148, subd. (a)(1)); and giving false information to a police officer (§ 148.9, subd. (a)).
The trial court revoked probation in case No. FCR222031 on June 20, 2007. In August 2007, defendant entered a plea of no contest to the violation of section 496, subdivision (a) in case No. FCR237012 and the violation of Health and Safety Code section 11378 in case No. FCR240015, and admitted a prior prison term (§ 667.5, subd. (b)). Defendant agreed to a three-year sentence based on the midterm for the violation of Health and Safety Code section 11378, with a concurrent sentence for the violation of section 496, subdivision (a), and a one-year enhancement pursuant to section 667.5, subdivision (b). The prosecutor agreed to dismiss the charges in case No. FCR243807. The trial court imposed a three-year sentence.
Defendant requested a certificate of probable cause, stating that he had received ineffective assistance of counsel, that he did not make his plea knowingly and intelligently, and that there was no probable cause to support the charges. The trial court denied the request. Defendant filed notices of appeal in all four cases.
Defendant petitioned this court for a writ of mandate, asking us to direct the trial court to vacate its orders denying a certificate of probable cause and to enter a new order granting the certificate. We denied his petition. (Carson v. Superior Court (Apr. 3, 2008, A120771) [nonpub. order].) Defendant petitioned the Supreme Court for review, and the Supreme Court denied review on June 18, 2008.
II. DISCUSSION
Defendant makes two arguments in his opening brief: (1) that no factual basis for his plea was established, and (2) that his pleas were not made freely and voluntarily.
Section 1237.5 provides: “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . ., 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 proceeding. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.” This rule does not preclude review of appeals based on the denial of a motion to suppress evidence or “[g]rounds that arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 8.304(b)(4) (rule 8.304(b)(4)).) Our Supreme Court has directed Courts of Appeal to apply section 1237.5 strictly, ruling that if an appeal is based on certificate grounds and the defendant has not sought and obtained a certificate of probable cause, the appeal must be dismissed. (People v. Mendez (1999) 19 Cal.4th 1084, 1096-1099 (Mendez); see also People v. Cole (2001) 88 Cal.App.4th 850, 860.)
The issues defendant raises affect the validity of his plea and do not fall within the exceptions of rule 8.304(b)(4). (See People v. Marlin (2004) 124 Cal.App.4th 559, 571 [claim of insufficient factual inquiry cognizable on appeal after issuance of certificate of probable cause]; People v. Thurman (2007) 157 Cal.App.4th 36, 44, fn. 6 [contention that court failed to make sufficient inquiry into basis for guilty plea challenges legality of plea]; People v. Castelan (1995) 32 Cal.App.4th 1185, 1187 (Castelan) [claim on appeal that trial court should have granted motion to withdraw plea, which was made on basis that he did not make plea voluntarily, required certificate of probable cause].) Accordingly, they are not cognizable on appeal absent a certificate of probable cause.
Defendant contends, however, that we should review his claims on the merits because the trial court abused its discretion in denying his request for a certificate of probable cause. The court in Castelan, supra, 32 Cal.App.4th at pages 1187-1188, considered and rejected the same argument. In doing so, it relied on In re Brown (1973) 9 Cal.3d 679, 683 (disapproved on another point in Mendez, supra, 19 Cal.4th at pp. 1097-1098 & fn. 7) stating that “the Supreme Court ruled that where, as here, a certificate of probable cause has been denied, the appeal is not operative and the denial of the certificate must be reviewed by writ of mandate. Brown explained: ‘Section 1237.5 is designed to preclude “frivolous appeals by requiring the defendant to set forth grounds for appeal and, if he does so, by requiring the trial court to rule on the issue of probable cause.” [Citation.] Where a certificate of probable cause has been denied on the merits the remedy is to seek review of the propriety of the denial. On a timely application therefor, the writ of mandate lies. [Citation.] . . . .’ ” (Castelan, supra, 32 Cal.App.4th at p. 1188; see also People v. Holland (1978) 23 Cal.3d 77, 84, fn. 6, disapproved on another point in Mendez, supra, 19 Cal.4th at pp. 1097-1098 & fn. 7 [“[t]he propriety of a trial court’s refusal to issue a certificate of probable cause is reviewable by a petition for a writ of mandate”]; see also People v. Manriquez (1993) 18 Cal.App.4th 1167, 1170 & fn. 3 [refusing to consider challenge to validity of plea where defendant had been denied certificate of probable cause and Court of Appeal had denied petition for writ of mandate].)
Our Supreme Court cited Castelan with approval in People v. Hoffard (1995) 10 Cal.4th 1170, 1180, fn. 8, stating that in Castelan, “the appellant sought but was denied a certificate to attack his plea, and did not challenge the denial by petition for writ of mandate but filed a notice of appeal specifying only sentencing issues. Upon receiving an opening brief addressing only the validity of the plea, the Court of Appeal correctly dismissed the appeal.”
As we have noted, defendant petitioned this court for a writ of mandate, challenging the trial court’s denial of his request for a certificate of probable cause. We denied the petition, and the Supreme Court has denied review. In the absence of a certificate of probable cause, we must dismiss the appeal.
III. DISPOSITION
The appeal is dismissed.
We concur: REARDON, Acting P. J., SEPULVEDA, J.