Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Arthur M. Lew, Judge, Los Angeles County Super. Ct. No. TA085117.
Gideon Margolis, 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, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Marc E. Turchin, Deputy Attorney General, for Plaintiff and Respondent.
TURNER, P. J.
Defendant, Richard M. Gray, purports to appeal after he entered a nolo contendere to a felony charge. Defendant never secured a probable cause certificate. 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.) Recognizing this potential jurisdictional question, we issued an order to show cause concerning possible dismissal of the appeal and set the cause for argument. 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.)
There is no merit to defendant’s contention that we should deem the notice of appeal to be from a noncertificate issue. There has been no showing defendant intended to appeal matters occurring after the plea. (People v. McEwan ( (2007) 147 Cal.App.4th 173, 179; compare People v. Lloyd (1998) 17 Cal.4th 658, 665-666.) Further, there is no evidence defendant was unaware of the right to appeal; he in fact filed a notice of appeal. Finally, there has been no evidence of any constitutional ineffectiveness on the part of defense counsel: no showing has been made that defendant asked defense counsel to file a notice of appeal; nor is there any evidence defense counsel failed to advise defendant of the right to appeal and the probable cause certificate issuance obligation; or that defense counsel failed to comply in any other way with the obligations imposed by In re Benoit (1973) 10 Cal.3d 72, 86-89 and its progeny. (See People v. Grey (1990) 225 Cal.App.3d 1336, 1340, disapproved on a different point in In re Jordan (1992) 4 Cal.4th 116, 130, fn. 8.)
The appeal is dismissed.
We concur: ARMSTRONG, J., KRIEGLER, J.