Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County No. MA038664. Kathleen Blanchard, Judge.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
GRIMES, J.
Defendant Solomon A. Gabriel was charged by information with cultivating marijuana (Health & Saf. Code, § 11358), possession of marijuana for sale (Health & Saf. Code, § 11359), possession of an assault weapon (Pen. Code, § 12280, subd. (b)), and theft of services over $400 (Pen. Code, § 498, subd. (b)). He pled no contest to counts 1 and 3, for cultivating marijuana and possession of an assault weapon. The other charges were dismissed pursuant to the plea bargain. Defendant was given a three years eight months suspended prison sentence, placed on five years’ probation, and ordered to surrender four weeks later to serve 180 days in county jail. Defendant failed to surrender and was found to be in violation of his probation. The previously suspended prison sentence was imposed. Defendant now appeals, contending that his motion to suppress evidence was improperly denied, and that the court erred in failing to order a mental competency evaluation. Finding no error, we affirm the judgment.
FACTS
On May 8, 2007, during a Section 8 fraud investigation at defendant’s Palmdale, California home, the Section 8 investigator and accompanying sheriff’s deputies observed marijuana plants growing in defendant’s backyard. The sheriff’s deputies obtained a search warrant, and during the search of defendant’s home, found marijuana plants, a scale, a handgun, an assault rifle, dried marijuana, and evidence that the electrical meter had been bypassed. Defendant was not present when the search was performed, but the fraud investigator had been in contact with defendant by phone. When a deputy spoke to defendant on the telephone after the search, defendant acknowledged that the marijuana was his. He also stated that he had a medical marijuana license. Defendant was thereafter arrested.
Section 8 is a housing subsidy program administered by local housing authorities and funded by the United States Department of Housing and Urban Development, which provides housing assistance to low-income individuals, families, seniors, and persons with disabilities. (See 42 U.S.C. § 1437f.)
At his preliminary hearing, defendant offered evidence that he was a caregiver under the Compassionate Use Act and that he had terminated his Section 8 contract, in which he had consented to an investigation of his home. Defendant contended that the authorities had no right to be on his property once the Section 8 contract had been cancelled. Defendant moved to suppress the evidence recovered in the search. That motion was denied by the judge presiding over the preliminary hearing. When the case was assigned to a felony calendar court, the court reconsidered the motion, reviewing the record of the preliminary hearing and considering defendant’s new evidence that the Section 8 housing contract had been terminated. Again, the motion was denied. On April 20, 2009, defendant entered a no contest plea and was sentenced to probation with a suspended prison term, and ordered to surrender on May 15, 2009, to serve 180 days in county jail. Defendant failed to appear in court on the surrender date and was adjudged to be in violation of his probation. Consequently, probation was revoked and the previously suspended sentence was imposed.
Health and Safety Code section 11362.5, known as the Compassionate Use Act of 1996, provides for the medical use of marijuana with a doctor’s recommendation. The act exempts certain individuals from criminal liability for marijuana use, possession, and cultivation under various sections of the Health and Safety Code. (See Health & Saf. Code, § 11362.765.)
Defendant initially attempted to file a notice of appeal on June 19, 2009, which was rejected and not filed by the trial court. The trial court filed defendant’s later notice of appeal “from [defendant’s] judgment and sentence” on September 9, 2009. No certificate of probable cause was sought or obtained, and no noncertificate issues were identified. This court issued an order to show cause “why [the] notice of appeal should not be marked ‘inoperative.’ ” Defendant was granted leave to file a motion seeking to amend his notice of appeal. This court granted defendant’s motion to amend the September 9, 2009 notice of appeal, to state “appellant appeals: (1) the denial of the motion to suppress evidence pursuant to Penal Code section 1538.5; and/or (2) grounds that arose after entry of the plea and do not affect the plea’s validity.”
DISCUSSION
Defendant’s contentions on appeal are: (1) the marijuana evidence should have been suppressed because it was medical marijuana, and because the search and seizure was not lawful since the Section 8 contract had been terminated, and defendant had a reasonable expectation of privacy in his backyard; and (2) the trial court erred in failing to order a competency hearing, after observing defendant’s erratic and irrational behavior. We find defendant failed to timely file a notice of appeal of the suppression ruling and, consequently, we do not address the merits of the ruling. We find no substantial evidence of defendant’s mental incompetence, and the trial court did not abuse its discretion by proceeding with the probation violation hearing without ordering an evaluation of defendant’s mental competence.
1. Timeliness of appeal for suppression motion.
An appeal must generally be taken within 60 days of the making of the order being appealed. (Cal. Rules of Court, rule 8.308(a).) An order granting probation and imposing a sentence, the execution of which is suspended, is an appealable order. (Pen. Code, § 1237, subd. (a).) Generally, an appealable order that is not appealed becomes binding and may not subsequently be attacked on appeal from a later appealable order or judgment. Therefore, a defendant who elects not to appeal an order granting or modifying probation cannot raise claims of error with respect to the grant or modification of probation in a later appeal from a judgment following revocation of probation. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.) This precludes an appellant from challenging those matters which occurred prior to the first appealable order, including a ruling on the suppression motion. (See, e.g., ibid.)
Defendant, without the assistance of counsel, did attempt to file a notice of appeal on the 60th day following the April 20, 2009 order entering defendant’s plea and granting probation. However, that notice of appeal was not filed by the court’s clerk, and a “turndown letter” was sent to defendant. Penal Code section 1237.5 provides that an appeal cannot be taken from a no-contest plea except when: (1) the defendant has filed with the trial court a written statement, under penalty of perjury, showing reasonable grounds addressing the legality of the proceedings; and (2) the trial court has executed and filed a certificate of probable cause. (Pen. Code, § 1237.5, subds. (a) & (b).)
Appeals of noncertificate issues, such as an appeal from a ruling on a suppression motion under Penal Code section 1538.5, are exempted from this requirement. (People v. Beuer (2000) 77 Cal.App.4th 1433, 1436-1437.) A defendant may obtain review of noncertificate issues if he files a notice of appeal identifying noncertificate issues with the superior court within 60 days of judgment. (People v. Mendez (1999) 19 Cal.4th 1084, 1088 (Mendez).) However, if no noncertificate issue is identified in the notice of appeal, and no statement required by Penal Code section 1237.5 is submitted by a defendant, the clerk of the superior court “must mark the notice of appeal ‘Inoperative, ’ [and] notify the defendant, and send a copy of the marked notice of appeal to the district appellate project.” (Cal. Rules of Court, rule 8.304(b)(3).)
An appeal from a ruling on a suppression motion is not operative unless the notice of appeal specifies this basis for the appeal. (People v. Ballard (1985) 174 Cal.App.3d 982, 985.) Our Supreme Court requires strict compliance with this rule. (Mendez, supra, 19 Cal.4th at p. 1098; see also People v. Earls (1992) 10 Cal.App.4th 184, 189.) In this case, defendant’s initial notice of appeal was never filed by the trial court because it concededly failed to comply with the above requirements.
After the revocation of defendant’s probation, he again, without assistance of counsel, submitted a notice of appeal to the trial court which did not seek a certificate of probable cause, or identify any noncertificate issues. Instead, the notice simply stated: “Notice is hereby given, that, Solomon Abyabwi Gabriel hereby appeals from his judgment and sentence.” Nevertheless, the trial court filed that notice of appeal. We then issued an order to show cause why the appeal should not be deemed inoperative, and granted defendant leave to file a motion to amend the defective notice of appeal. Defendant moved to amend the notice of appeal that was filed in September 2009. Defendant did not request that we take any action regarding the previously rejected notice of appeal. He did not argue that the June 2009 rejected notice of appeal was adequate, claim any error in the trial court’s failure to file it, or seek constructive filing of the notice. Defendant’s motion to amend the September 2009 notice of appeal was not supported by any evidence or declarations.
As discussed above, the September 2009 notice of appeal was filed too late to entitle defendant to a review of any issue regarding the suppression motion, which was heard before he entered his April 20, 2009 plea. Although we granted defendant’s motion to amend the September 2009 notice to include language stating the appeal challenges the suppression motion, our order permitting the amendment did not decide the timeliness or legal efficacy of the amended notice. This court simply signed defendant’s proposed order and permitted the requested amendment. This court is without power to resurrect the untimely appeal of the preplea suppression motion. (See Cal. Rules of Court, rule 8.60(d) [“For good cause, a reviewing court may relieve a party from default for any failure to comply with these rules except the failure to file a timely notice of appeal or a timely statement of reasonable grounds in support of a certificate of probable cause”].)
In his reply brief, plaintiff contends that he did attempt to file a timely notice of appeal from the suppression ruling with his June 19, 2009 notice of appeal. Defendant argues that he “should not be penalized for failing to file a notice of appeal, when he made a good-faith effort to do so.” He also contends that notices of appeal are liberally construed, citing People v. Lloyd (1998) 17 Cal.4th 658, 665 (“a notice of appeal must ‘be liberally construed in favor of its sufficiency’ [Citation.]”). However, the sufficiency of the rejected notice of appeal is not part of the record of this appeal. Rule 8.54(a)(2) of the California Rules of Court provides that a “motion must be accompanied by a memorandum and, if it is based on matters outside the record, by declarations or other supporting evidence.” As discussed above, no such evidence is before this court. Therefore, we necessarily conclude that this court lacks jurisdiction to consider the untimely appeal of the ruling on the suppression motion. (See In re Jordan (1992) 4 Cal.4th 116, 121 [timely notice of appeal is jurisdictional].)
2. Competency
Defendant also contends that the trial court erred when it failed to order a mental competency evaluation of defendant, following his pattern of erratic behavior at the contested probation revocation hearing. We disagree.
a. Appealability
Defendant contends that his postplea mental competence is a noncertificate issue properly before this court on the amended notice of appeal. Although a certificate of probable cause is required to address competency issues to attack a plea (Mendez, supra, 19 Cal.4th at p. 1100 [“mental incompetence issues are indeed certificate issues, inasmuch as they are questions going to the legality of the proceedings, and, specifically, the validity of his guilty plea”]), no certificate is required to address competence in the context of a postplea probation violation hearing. (People v. Oglesby (2008) 158 Cal.App.4th 818, 828.) Also, pursuant to Glaser, supra, the question “whether a person is competent... is a jurisdictional question.” (People v. Smith (2003) 110 Cal.App.4th 492, 502.)
b. Facts concerning defendant’s competence
After defendant’s plea was taken and he was sentenced, he was released on bond and was ordered to surrender to custody on May 15, 2009. Before his surrender date, defendant filed several motions with the trial court, including one captioned “Motion of notice of recission [sic] of signature of plea agreement.” His motions were summarily denied by the court. The trial court noted that the motions sought to assign defendant’s debts to the judge and they were “incomprehensible [and] clearly a sham and clearly frivolous and inappropriate.” Defendant failed to surrender to custody as ordered by the court, and a bench warrant was issued. He was later picked up on the warrant, and on July 31, 2009, the case was called for a bench warrant hearing.
At that hearing, defendant stated he had fired the attorney who represented him in this case, and stated that “I’m my attorney.” After stating he wanted to represent himself, defendant then refused to fill out the Faretta forms to effectuate his self-representation. (Faretta v. California (1975) 422 U.S. 806.) Defendant said “I want pro per but I want co-counsel.” The court told defendant that he could not “have it both ways.” Defendant and the court discussed on the record the setting of a probation violation hearing, and defendant became agitated, asking “Is the truth valid in this court?” After the trial court denied defendant’s motions, defendant retorted “Religious freedom restoration act.”
At defendant’s contested probation violation hearing, his previously retained counsel, Mr. Banjo, appeared. After Mr. Banjo stated his appearance, defendant “object[ed]” and asked to address the court. The court instructed defendant to speak through his attorney only. Throughout the probation violation hearing, defendant continuously “object[ed].” During his presentation of a defense, Mr. Banjo indicated that defendant acted irrationally and may suffer from dementia. The trial court stated “I don’t believe that there’s any sort of dementia with Mr. Gabriel. I believe that there is an absolute defiance with Mr. Gabriel.”
c. The trial court did not err when it failed to order a competency hearing.
Under Penal Code section 1367, a person is incompetent to stand trial if “as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (Pen. Code, § 1367, subd. (a).) A trial judge has the duty to inquire into the mental capacity of a defendant to stand trial whenever evidence presented during trial or before sentencing raises a bona fide doubt about a defendant’s competence to stand trial. (Id., § 1368.) These provisions apply to probation revocation proceedings. (People v. Hays (1976) 54 Cal.App.3d 755, 759.) A defendant is entitled to a competency hearing under Penal Code section 1368 as a matter of law if there is substantial evidence showing his mental incompetency. However, where the evidence of incompetency is less than substantial, whether or not to order a competency hearing is within the discretion of the trial judge. (People v. Stiltner (1982) 132 Cal.App.3d 216, 222-223.)
Here, defendant’s obstreperous behavior did not indicate any unfitness or lack of competence. Instead, it demonstrated defendant’s lack of respect for the court and its orders. Counsel’s mere declaration of a doubt about defendant’s mental condition was not itself substantial evidence that defendant was incompetent. Plainly, not every obstinate defendant who is unhappy to be in court is entitled to a competency hearing. The trial court had numerous interactions with defendant, in which the court observed defendant’s behavior. A trial court’s findings are entitled to substantial deference. (In re Dennis (1959) 51 Cal.2d 666, 670-671 [“[a] strong showing is required before an abuse of discretion is deemed to result from the failure of the trial court to order a determination of present sanity. [Citation.] ‘The “doubt” mentioned is one that must arise in the mind of the trial judge, rather than in the mind of counsel for the defendant or in that of any third person [citations] and the determination of a motion for a hearing upon the issue of a defendant’s sanity at the time of the trial is one which rests within the sound discretion of the court. Necessarily, an appellate court cannot measure to a nicety the basis for the ruling, and the trial judge must be allowed a wide latitude [citations]’ ”].) Here, the trial court did not abuse its discretion in failing to order a competency hearing as any evidence of defendant’s incompetence was insubstantial. Therefore, no error occurred, and defendant’s due process rights are not implicated.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RUBIN, Acting P. J., FLIER, J.