Opinion
NOT TO BE PUBLISHED
Superior Court County Super. Ct. No. 2005-034065 of Ventura Herbert Curtis III, Judge
California Appellate Project, under appointment by the Court of Appeal, Jonthan B. Steiner, Executive Director and Richard B. Lennon, Staff Attorney, for Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Tanaz Koupainezhad, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, A.P.J.
Maria Gabrie was convicted by guilty plea of theft from an elderly person (Pen. Code, § 368, subd. (e)), two counts of identity theft (§ 530.5, subd. (a)), forgery (§ 470, subd. (a)), and receiving stolen property. (§ 496, subd. (a).) She was sentenced to a term in state prison of four years, eight months. Appellant contends that she received ineffective assistance of counsel because an attorney appointed by the trial court to investigate whether grounds existed for a motion to withdraw her guilty pleas concluded the motion should not be filed. She requests that the judgment be vacated and the matter remanded to the trial court, with a different judge presiding, so that her request to withdraw her guilty plea may be considered. Respondent filed a motion to dismiss the appeal on the ground that appellant has challenged the validity of her guilty plea without obtaining a certificate of probable cause. We deferred resolution of the motion until the parties had filed their briefs on appeal. We now grant the motion and dismiss the appeal.
All statutory references are to the Penal Code unless otherwise stated.
Facts
Appellant, who worked as a private care giver, stole many thousands of dollars from elderly Alzheimer's patients. She stole identifying information from patients which she used to open credit cards in their names. Appellant persuaded another patient to loan her $19,000 which appellant never repaid.
Appellant eventually pleaded guilty to one count of theft from an elderly person (Pen. Code, § 368, subd. (e)), two counts of identity theft (§ 530.5, subd. (a)), one forgery count (§ 470, subd. (a)), and one count of receiving stolen property. (§ 496, subd. (a).) In November 2006, prior to sentencing, appellant made a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) for appointment of new counsel. The trial court denied that motion.
All statutory references are to the Penal Code unless otherwise stated.
In December, appellant moved to withdraw her guilty plea, claiming she had signed the plea form under duress and without full information. The trial court appointed separate counsel to investigate whether grounds existed for a motion to withdraw appellant's guilty plea. At the hearing scheduled to address that issue, appellant made yet another Marsden motion, this time with respect to the separate counsel. She explained that she did not believe the new attorney had listened to all of the reasons she had for wanting to withdraw her plea. The trial court denied the motion. The attorney who had been appointed to investigate appellant's request to withdraw her plea subsequently informed the trial court that he could find no basis upon which to pursue such a motion.
The trial court agreed, stating, "[B]ased on my investigation and knowledge of the case and your comments, a well-respected lawyer here in the county, I find Ms. Gabrie, that you don't have a legal basis to withdraw your plea. [¶] . . . . This is what I call – and it happens occasionally in the criminal justice system – buyer's remorse." At a subsequent hearing, the trial court sentenced appellant to four years, eight months in state prison.
Appellant filed a timely notice of appeal. She did not obtain a certificate of probable cause.
Discussion
Respondent moves to dismiss the appeal based on appellant's failure to obtain a certificate of probable cause. Penal Code section 1237.5 provides: "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty . . . except where . . . [¶] . . . (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court." (Pen. Code § 1237.5; see also Cal. Rules of Court, rule 8.304.) An appeal filed in contravention of this rule "is not operative and the appropriate disposition is dismissal." (People v. Earls (1992) 10 Cal.App.4th 184, 193.)
A certificate of probable cause is not required where the grounds for appeal "arose after entry of the plea and do not affect the plea's validity." (Cal. Rules of Court, rule 8.304.) In deciding whether this exception applies, we must determine whether an appeal, nominally based on grounds that arose after entry of appellant's guilty plea "is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of the section 1237.5." (People v. Panizzon (1996) 13 Cal.4th 68, 76.)
Our Supreme Court recently held that an appeal challenging the sentence imposed where the plea agreement included a specified maximum sentence, "is in substance a challenge to the validity of the negotiated plea. Therefore, defendant's failure to secure a certificate of probable cause bars consideration of this challenge and requires dismissal of [the] appeal." (People v. Shelton (2006) 37 Cal.4th 759, 771.) A certificate of probable cause is also required where the defendant challenges the validity of a guilty plea "on the ground that trial counsel rendered ineffective assistance in advice regarding the plea . . . ." (In re Chavez (2003) 30 Cal.4th 643, 651.)
Appellant's brief raises a single issue: she contends that she received ineffective assistance of counsel at the hearing on her request to withdraw her guilty plea because her attorney never informed the trial court of her reasons for wanting to withdraw the plea, but instead admitted that he could find no basis for such a motion. Appellant contends that she is challenging the conduct of her counsel, not the validity of her guilty plea. We are not persuaded.
The appeal is, in substance, a challenge to the validity of appellant's plea. To prevail on a claim of ineffective assistance of counsel, appellant must establish that she was prejudiced by counsel's deficient representation. (In re Wilson (1992) 3 Cal.4th 945, 950.) Prejudice occurs only where "there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the [appellant]." (Id.) The only way in which appellant could have been prejudiced by counsel's failure to make a motion to withdraw her guilty plea is if there is a reasonable probability that the motion should have been granted. (See, e.g., People v. Smith (1993) 6 Cal.4th 684, 696; People v. Brown (1986) 179 Cal.App.3d 207, 216.) That probability would exist only if appellant's plea was invalid in some respect. (People v. Castaneda (1995) 37 Cal.App.4th 1612, 1617; People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) The only grounds appellant has ever cited for withdrawing her plea go directly to its validity. She contends she was under duress, that counsel did not explain the charges, and that she did not receive an accurate inventory of property to be sold to pay restitution. Thus, appellant's claim is that counsel was ineffective for failing to challenge the validity of her plea. She was therefore required to obtain a certificate of probable cause. Because she did not, her appeal is inoperative and respondent's motion to dismiss must be granted. (People v. Panizzon, supra, 13 Cal.4th at p. 75; People v. Earls (1992) 10 Cal.App.4th 184, 193.)
People v. Earp (March 11, 2008, No. B201309) ___ Cal.App.4th ___ [2008 DJDAR 3513] is not to the contrary. In that case, the defendant entered a no contest plea and was released from custody pending sentencing. He failed to appear for sentencing and was arrested on another charge, circumstances the trial court had already warned him would trigger a prison sentence rather than drug treatment. At the continued sentencing hearing, the defendant stated that he wanted to withdraw his plea because he understood he would be sentenced to drug treatment. After a long colloquy, the trial court relieved the public defender and appointed the alternate public defender to represent defendant. About 30 minutes later, it called the case again and reappointed the public defender, without ever hearing from the alternate public defender. The trial court concluded there was no basis for withdrawing the plea and went on to impose a prison sentence. On appeal, the defendant argued this procedure deprived him of his right to counsel and of the opportunity to present a motion to withdraw his plea. The Court of Appeal held the appeal did not require a certificate of probable cause because the defendant "is not attacking the validity of his no contest plea. Instead, he has a quarrel with the post-plea events that led to his state prison sentence." (Id. at p. ___, [2008 DJDAR at p. 3515].)
The instant case is distinguishable from Earp's unique facts. There, the defendant sought to withdraw his plea because events that occurred after its entry (his failure to appear and re-arrest) led to a prison sentence he hadn't anticipated. Here, appellant sought to withdraw her plea based on events that occurred before its entry: her purported duress and lack of knowledge. On appeal, she claims the conflict counsel was ineffective because he did not present these grounds to the trial court, a circumstance that could prejudice appellant only if the underlying grounds have merit. This is, in substance, a challenge to the validity of her plea. It requires a certificate of probable cause.
Conclusion
The appeal is dismissed.
We concur: COFFEE, J., PERREN, J.