Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA077628. George Genesta, Judge. Dismissed.
Barbara A. Smith, 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, Yun K. Lee and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Appellant Walter David Gray appeals from the judgment entered following his plea of nolo contendere to a charge of possessing cocaine base for sale. Appellant contends his attorney rendered ineffective assistance due to a conflict of interest. We dismiss the case because appellant did not obtain a certificate of probable cause.
FACTS
The police searched appellant’s residence pursuant to a warrant. The police found significant quantities of rock cocaine and marijuana, a loaded semi-automatic handgun, a digital scale, some baggies, and $2,151 in cash on appellant’s brother, James Gray, who was inside a locked bedroom in the house.
Appellant and James Gray were jointly charged with possessing the rock cocaine and marijuana. After the preliminary hearing, attorneys Theodore and Andrew Flier substituted in as counsel for appellant and James Gray. Counsel filed a motion on behalf of both appellant and James Gray to suppress evidence seized during a warrantless search. The hearing on the suppression motion was continued to the date of trial.
On the date set for trial, Theodore Flier announced that he was appearing for appellant, and Andrew Flier announced his appearance for James Gray. The court noted that the suppression motion appeared to be moot because counsel had informed him the search was conducted pursuant to a warrant. Andrew Flier stated he would take the motion off calendar and shifted the discussion to a motion to disclose the identity of a confidential informant. The court subsequently reiterated, “[C]ounsel is now conceding... the 1538[.5] does not apply.” Accordingly, the court did not rule upon the suppression motion.
Appellant and James Gray subsequently entered negotiated pleas of nolo contendere. Appellant pled to a single count of possession of a controlled substance for sale (Health & Saf. Code, § 11351). In accordance with the plea agreement, the court sentenced appellant to two years in prison. Appellant filed a timely notice of appeal. The trial court denied his request for a certificate of probable cause.
DISCUSSION
Appellant contends the dual representation of himself and his co-defendant by two attorneys from the same law firm created a conflict of interest that violated his right to the effective assistance of counsel. To attempt to avoid the necessity of a certificate of probable cause, he focuses his ineffective assistance claim on the suppression motion.
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 such appeal. (Pen. Code, § 1237.5, Cal. Rules of Court, rule 8.304(b).) No certificate of probable cause is required if the appeal is based solely upon (1) “[t]he denial of a motion to suppress evidence under Penal Code section 1538.5” or (2) “[g]rounds that arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 8.304(b)(4).) In determining whether a certificate of probable cause is required, courts must look to what the defendant is challenging, not its time or manner. (People v. Panizzon (1996) 13 Cal.4th 68, 76.) “[T]he 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.” (Ibid.) If a certificate is required, but is not timely obtained by the appellant, the appeal is inoperative and its merits may not be considered. (Id. at p. 75.)
Appellant does not challenge the denial of a motion to suppress. The trial court did not rule on the motion because it was taken off calendar by counsel. A claim of ineffective assistance of counsel in relation to a motion to suppress is merely a claim challenging the legality of the proceedings prior to the plea, for which a certificate of probable cause is required. (People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245.) Accordingly, we must dismiss appellant’s appeal.
DISPOSITION
The appeal is dismissed.
We concur, KLEIN, P. J., KITCHING, J.