Opinion
B162923.
7-22-2003
THE PEOPLE, Plaintiff and Respondent, v. GURAM CHACHAVA, Defendant and Appellant.
Julie Schumer, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Steven D. Matthews, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant Guram Chachava challenges his convictions of possession of controlled substance for sale and possession of controlled substance with a firearm on two grounds: (1) the trial court erred in denying him a hearing on his request to withdraw his no contest plea, and (2) his trial attorney rendered ineffective assistance by failing to make the motion to withdraw the plea or to speak out in support of the request. We conclude consideration of the first issue is barred by appellants failure to obtain a certificate of probable cause, and consideration of the ineffective assistance claim is barred by appellants failure to state, in his notice of appeal, that he was appealing on noncertificate grounds.
BACKGROUND AND PROCEDURAL HISTORY
Appellant was charged with two counts of possessing controlled substances for sale (Health & Safety Code, § 11378), and one count of possessing methamphetamine with a firearm (Health & Safety Code, § 11370.1, subd. (a)). When the case was called for trial, the parties entered into a plea agreement in which appellant agreed to plead no contest to two of the three charges, for which he was to be sentenced to nine years in prison. Following an extensive, detailed advisement and waiver of his privilege against self-incrimination and his rights to a jury trial, to confront and cross-examine witnesses, and to subpoena and call witnesses, appellant pled no contest to the two charges, as agreed.
Eight months later, the trial court sentenced appellant to the agreed term and dismissed the remaining count. At the conclusion of the hearing, once sentence was pronounced, appellant asked to say something "for the record." He then told the court he had been "pressured, you know, take this deal, you know, and I do openly and knowingly you know, what do you call, accept this deal accept this sentence and I do not understand the so-called waiver of rights, you know, because of my Russian background and all that stuff." The court stated that it found appellant spoke English very well, understood English, and understood his rights. The court told appellant, "This is over, sir. Its over." Appellant then stated that he wanted to withdraw his plea, but the court terminated the hearing.
DISCUSSION
1. Appellants contention that the trial court was required to conduct a more extensive hearing on his motion to withdraw his plea cannot be considered in the absence of a certificate of probable cause.
Appellant contends the trial court erred by failing to afford him a hearing on his motion to withdraw his plea. Respondent contends this court may not consider the issue because appellant did not obtain a certificate of probable cause.
A defendant who pleads guilty or nolo contendere generally may not appeal, unless he timely obtains from the trial court a certificate of probable cause for the appeal. (Pen. Code, § 1237.5, Cal. Rules of Court, rule 31(d).) However, no certificate of probable cause is required if the appeal is based "solely upon grounds (1) occurring after entry of the plea which do not challenge its validity or (2) involving a search or seizure, the validity of which was contested pursuant to section 1538.5 of the Penal Code." (Cal. Rules of Court, rule 31(d).) These grounds are often referred to as "noncertificate issues." (See, e.g., People v. Mendez (1999) 19 Cal.4th 1084, 1088, 969 P.2d 146.) In determining whether a certificate of probable cause is required, courts must look to what the defendant is challenging, not its time or manner. The "critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5." (People v. Panizzon (1996) 13 Cal.4th 68, 76, 913 P.2d 1061, italics in original.) If a certificate is not timely obtained by the appellant, only non-certificate issues may be considered on appeal. (Id. at p. 75; Cal. Rules of Court, rule 31(d).)
The trial courts rejection of appellants request to withdraw his plea was an event occurring after the entry of the plea. The court heard appellants grounds, which were, in essence, contentions that his plea was invalid because he did not knowingly, intelligently, and voluntarily enter into the plea and waive his rights. The court found appellants contentions meritless and denied his request to withdraw his plea. The end result desired by appellant would be for this court to remand the case for a hearing at which the trial court would reconsider appellants request to withdraw his plea and grant the request. In essence, appellant argues the trial courts consideration of his request and its ruling thereon were flawed in that it should have found his plea invalid and granted his request to withdraw it. Appellants contention is, in substance, a challenge to the validity of his plea. Accordingly, appellants failure to obtain a certificate of probable cause precludes consideration of this issue.
Moreover, appellants notice of appeal does not state that it is based upon noncertificate grounds, as required by California Rules of Court, rule 31(d). Thus, even if we were to conclude the issue was a noncertificate ground, its consideration would be barred by failure to comply with the second paragraph of rule 31(d). (People v. Mendez, supra, 19 Cal.4th at p. 1099.)
2. Defense counsel did not render ineffective assistance.
Appellant further contends his trial attorney rendered ineffective assistance because he "stood mute in the face of Appellants attempts to articulate his desire to withdraw his plea," did not present appellants motion to withdraw his plea, and did not request a recess to discuss the matter with appellant.
Because this issue pertains to a post-plea event that does not challenge the validity of the plea itself, no certificate of probable cause is required. (People v. Osorio (1987) 194 Cal. App. 3d 183, 187, 239 Cal. Rptr. 333.) Nonetheless, consideration of the issue is barred by appellants failure to comply with the second paragraph of California Rules of Court, rule 31(d), as previously noted.
DISPOSITION
The appeal is dismissed.
We concur: COOPER, P.J., RUBIN, J.