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People v. Jesus

Court of Appeals of California, Third Appellate District, Butte.
Nov 24, 2003
No. C040990 (Cal. Ct. App. Nov. 24, 2003)

Opinion

C040990.

11-24-2003

THE PEOPLE, Plaintiff and Respondent, v. MARGARITO JESUS GARCIA, Defendant and Appellant.


Defendant Margarito Jesus Garcia appeals after he pled no contest to second degree murder. He contends the terms of his negotiated plea were breached because he was advised he would receive no more than 15 percent credit on his term of imprisonment, when in fact he is ineligible to receive any credit. We shall dismiss the appeal because defendant has not obtained a certificate of probable cause.

FACTUAL AND PROCEDURAL BACKGROUND

According to the probation report, defendant became involved in a fight between two rival groups of young people. Defendant stabbed a member of the rival group several times in the chest and abdomen. When defendant got into a vehicle to leave, he exclaimed to the other occupants that he "`almost got him in the heart." Defendant threw the knife from the moving vehicle after they left the scene. Defendant was charged with one count of murder (Pen. Code, § 187, subd. (a)), with a special allegation that he had used a knife in the commission of the offense (§ 12022, subd. (b)).

All further statutory references are to the Penal Code.

Defendant pled no contest to second degree murder on condition the personal use enhancement would be stricken. The written plea form defendant initialed and signed informed defendant he would receive no more than 15 percent credit for time served in prison. At the plea hearing, the court confirmed that defendant had indicated his understanding of the penalties and consequences of his plea by initialing and signing the plea form. The plea form was incorrect because defendant is statutorily ineligible to receive any worktime credit while imprisoned. (§ 2933.2, subd. (a); People v. McNamee (2002) 96 Cal.App.4th 66, 74.)

Paragraph 24 of the preprinted form states: "I understand that by pleading guilty/no contest to a felony offense listed in PC § 667.5(c) [violent felony] the credits for time-served I may gain in custody as to said offense cannot exceed 15% of the total term of imprisonment including local confinement; that is, I must actually serve 85% of any sentence imposed before I will be eligible for parole." (Brackets in original.)

Section 2933.2, subdivision (a) provides: "Notwithstanding Section 2933.1 or any other law, any person who is convicted of murder, as defined in Section 187, shall not accrue any credit, as specified in Section 2933." Section 2933 allows prison inmates to accrue worktime credits.

At the sentencing hearing, the trial court informed defendant that he was statutorily ineligible to receive any credit for time served in prison. The court sentenced defendant to an indeterminate term of 15 years to life.

Defendant appealed and applied for a certificate of probable cause in the trial court. (§ 1237.5.) The court denied the application.

Defendant did not raise any issue with respect to credits in his application.

After the appeal was on file, defendant filed a motion in this court seeking relief from the trial courts denial of his request for a certificate of probable cause. We denied defendants motion on January 9, 2003.

The motion requested alternatively that we deem the application for a certificate of probable cause as having been granted, or authorize defendant to seek a late certificate of probable cause, or expand the scope of defendants appellate counsel to prepare a petition for a writ of mandate to compel the trial court to grant defendants request for a certificate of probable cause.

DISCUSSION

Defendant contends the plea agreement was breached and he is thereby entitled to withdraw his plea. The People respond that the appeal must be dismissed because defendant failed to obtain a certificate of probable cause, he waived his right to appeal, conduct credits were not part of the plea bargain, and defendant was correctly advised and waived any claim of error by failing to object at sentencing.

Our review of the record leads us to conclude the appeal must be dismissed because defendant failed to obtain a certificate of probable cause pursuant to section 1237.5. This section provides: "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, . . . except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the county clerk."

Rule 31(d) of the California Rules of Court provides: "If a judgment of conviction is entered upon a plea of guilty or nolo contendere, the defendant shall, within 60 days after the judgment is rendered, file as an intended notice of appeal the statement required by section 1237.5 of the Penal Code; but the appeal shall not be operative unless the trial court executes and files the certificate of probable cause required by that section. . . ."

A defendant may not obtain review of issues requiring a certificate of probable cause unless he has complied with section 1237.5 and California Rules of Court, rule 31(d). (People v. Mendez (1999) 19 Cal.4th 1084, 1097.) "It has long been established that issues going to the validity of a plea require compliance with section 1237.5. [Citation.]" (People v. Panizzon (1996) 13 Cal.4th 68, 76 (Panizzon).) "In determining the applicability of section 1237.5, the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made. . . . If 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. [Fn. omitted.] 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.) Similarly, where a defendant on appeal contends his guilty plea must be set aside or withdrawn because of ineffective assistance of counsel, the defendant must first obtain a certificate of probable cause in order to make his appeal on those issues operative. (People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245; People v. Cotton (1991) 230 Cal.App.3d 1072, 1079.)

Defendant admits no certificate of probable cause was issued by the trial court, but suggests he does not need one because his claim goes only to sentencing. This argument lacks merit. In the present case, the basis for relief stems not from sentencing error, but from the written plea forms statement that defendant would be eligible to receive no more than 15 percent credit and that he must serve at least 85 percent of his term before he would be eligible for parole. Defendant does not seek a correction of his sentence or specific enforcement of the plea, but rather the setting aside of his plea because there was a breach of the negotiated plea. In response to the Peoples argument that the appeal must be dismissed because defendant did not obtain a certificate of probable cause, defendant asserts in his reply brief that the cases upon which the People rely are distinguishable because they did not involve a breach of the terms of a plea bargain. Defendants attempt to circumvent the certificate of probable cause requirement is unavailing, however, because the Supreme Court has instructed that "a certificate must be obtained when a defendant claims that a plea was induced by misrepresentations of a fundamental nature [citation] . . . ." (Panizzon, supra, 13 Cal.4th at p. 76, citing People v. DeVaughn (1977) 18 Cal.3d 889, 896 ["a claim that the plea . . . was improperly induced would challenge the legality of the proceedings resulting in the plea and would thus be cognizable on an appeal pursuant to section 1237.5" (italics omitted)].) In other words, the issue defendant raises is cognizable on appeal pursuant to section 1237, subdivision (a), but the appeal is procedurally barred by section 1237.5, subdivision (b) because of the absence of a certificate of probable cause.

Defendant acknowledges that specific enforcement is unavailable because the amount of prison conduct credits is not a permissible subject of plea negotiations. (See §§ 190, subd. (e), 2933.2.)

DISPOSITION

The appeal is dismissed.

We concur: BLEASE, Acting P.J. and MORRISON, J.


Summaries of

People v. Jesus

Court of Appeals of California, Third Appellate District, Butte.
Nov 24, 2003
No. C040990 (Cal. Ct. App. Nov. 24, 2003)
Case details for

People v. Jesus

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MARGARITO JESUS GARCIA, Defendant…

Court:Court of Appeals of California, Third Appellate District, Butte.

Date published: Nov 24, 2003

Citations

No. C040990 (Cal. Ct. App. Nov. 24, 2003)