Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County,No. TA087761, Arthur W. Lew, Judge.
Johnson & Barnes and Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance on behalf of Plaintiff and Respondent.
TURNER, P. J.
On November 20, 2007, defendant, Rick Cunningham, pled nolo contendere to a drug charge. Defendant’s probable cause certificate issuance certificate request was denied. We noted that the present matter may not be appealable and we issued an order to show cause concerning possible dismissal of the appeal. We did so because we have a duty to raise issues concerning our jurisdiction on our own motion. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126; Olson v. Cory (1983) 35 Cal.3d 390, 398.) We allowed the parties, if they wished, the opportunity to orally argue.
Defendant has failed to fully and timely comply with both Penal Code section 1237.5 and California Rules of Court, rule 8.304(b). (In re Chavez (2003) 30 Cal.4th 643, 651; People v. Mendez (1999) 19 Cal.4th 1084, 1099; People v. Way (2003) 113 Cal.App.4th 733, 736.) Without a probable cause certificate, defendant cannot appeal. (People v. Kaanehe (1977) 19 Cal.3d 1, 8; People v. Ribero (1971) 4 Cal.3d 55, 61; People v. West (1970) 3 Cal.3d 595, 600-601; People v. Ward (1967) 66 Cal.2d 571, 574-576.) In an effort to avoid the impact of the foregoing body of law, defendant has filed a mandate petition challenging the denial of his probable cause certificate issuance request. Defendant argues he was denied the effective representation of counsel which warranted his plea being withdrawn. We review the denial of a probable cause issuance request for an abuse of discretion. (People v. Holland (1978) 23 Cal.3d 77, 84, overruled on a different point in People v. Mendez, supra 19 Cal.4th at p. 1093; People v. Warburton (1970) 7 Cal.App.3d 815, 820.) Defendant has failed to demonstrate the trial court abused its discretion in impliedly concluding that had other action be taken in connection with his defense, there is not a reasonable probability of a more favorable result in connection with issues of guilt or sentence including the amount of restitution. (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Smithey (1999) 20 Cal.4th 936, 985-988.)
The appeal is dismissed. The mandate petition filed May 1, 2009, is denied.
We concur: ARMSTRONG, J., KRIEGLER, J.