Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC645374
BAMATTRE-MANOUKIAN, ACTING P.J.
Defendant was convicted by no contest plea of continuous sexual abuse of a child under 14 (Pen. Code, § 288.5, subd. (a)). He filed a motion to withdraw his plea, contending that the plea “was the result of coercion, and not the product of the informed exercise of free will.” Following a hearing, the trial court denied the motion to withdraw the plea. The court subsequently sentenced defendant to 12 years in state prison. Defendant filed a timely notice of appeal and request for certificate of probable cause, but the trial court denied the request for certificate of probable cause. On appeal, defendant contends that he “was deprived of the opportunity to make a knowing and intelligent waiver of his [c]onstitutional [r]ights when the change of plea was coerced by a threat of a life sentence first delivered to [him] when the matter was called [and] assigned out for preliminary examination.” He further contends that he was “deprived of effective representation when his trial counsel failed to consult with him, to investigate the facts and defenses, and other[wise] prepare a defense.” For the reasons stated below, we will dismiss the appeal.
All further statutory references are to the Penal Code.
This court summarily denied defendant’s petition for writ of mandate seeking review of the trial court’s order. (H032549.)
Defendant has also filed a petition for writ of habeas corpus, which this court ordered considered with the appeal. In the petition defendant contends that trial counsel rendered ineffective assistance prior to entry of the no contest plea. We have disposed of the habeas petition by separate order filed this date. (See Cal. Rules of Court, rule 8.264(b)(4).)
All further rule references are to the California Rules of Court.
DISCUSSION
“[S]ection 1237.5 provides that a defendant may not take an appeal from a judgment of conviction entered on a plea of guilty or nolo contendere unless he [or she] has filed in the superior court a statement of certificate grounds, which go to the legality of the proceedings, including the validity of his [or her] plea, and has obtained from the superior court a certificate of probable cause for the appeal. [Citation.]” (People v. Mendez (1999) 19 Cal.4th 1084, 1095 (Mendez); see also In re Chavez (2003) 30 Cal.4th 643, 650 (Chavez).) Rules 8.304(a) and (b) and 8.308 implement section 1237.5 by providing that a defendant may not take or prosecute an appeal after a plea of guilty or no contest unless he or she has filed a timely notice of appeal from the judgment as well as a statement of certificate grounds, and has obtained a certificate of probable cause. (See Mendez, supra, 19 Cal.4th at p. 1095 [discussing former rule 31(d)]; Chavez, supra, 30 Cal.4th at p. 650 [same].)
A defendant may take an appeal without a statement of certificate grounds or a certificate of probable cause if he or she does so “solely on noncertificate grounds which go to postplea matters not challenging [the] plea’s validity and/or matters involving a search or seizure whose lawfulness was contested pursuant to section 1538.5. [Citations.]” (Mendez, supra, 19 Cal.4th at p. 1096.) However, to do so, the defendant must state in his or her timely filed notice of appeal that the appeal is based on one or both of the noncertificate grounds. (Rule 8.304(b)(4).) And, if the notice of appeal contains such a statement, the reviewing court will not consider any issue affecting the validity of the plea unless the defendant has also filed a statement of certificate grounds and obtained a certificate of probable cause. (Rule 8.304(b)(5); see Mendez, supra, 19 Cal.4th at p. 1096.)
Defendant’s notice of appeal includes a statement that the appeal is based on postplea grounds that do not challenge the plea’s validity. However, “[i]f a defendant challenges the validity of his plea by way of a motion to withdraw the plea, he cannot avoid the requirements of section 1237.5 by [labeling] the denial of the motion as an error in a proceeding subsequent to the plea. To hold otherwise would be to invite such motions as a matter of course, and would be wholly contrary to the purpose of section 1237.5.” (People v. Ribero (1971) 4 Cal.3d 55, 63-64; see also, Chavez, supra, 30 Cal.4th at p. 651.) In addition, we may not treat the appeal as a petition for writ of habeas corpus as “[a] defendant who challenges the validity of such a plea on the ground that trial counsel rendered ineffective assistance in advice regarding the plea may not circumvent the requirements of section 1237.5 by seeking a writ of habeas corpus.” (Chavez, supra, at p. 651; see also People v Stubbs (1998) 61 Cal.App.4th 243, 245.)
In the instant case, since defendant is challenging the validity of his plea, he was required to comply with section 1237.5. He has not done so. “When a defendant has failed to comply with the requirements of section 1237.5 and [the applicable rules], the Court of Appeal ‘generally may not proceed to the merits of the appeal, but must order dismissal . . . .’ [Citations.]” (Chavez, supra, 30 Cal.4th at p. 651; Mendez, supra, 19 Cal.4th at p.1096.)
DISPOSITION
The appeal is dismissed.
WE CONCUR: MIHARA, J., duffy, J.