Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 2857
HULL, J.
Sixteen years after he pleaded guilty to sexual battery (Pen. Code, § 243.4; hereinafter all statutory references are to the Penal Code), defendant Richard Bruce LaVallee brought a motion to vacate the 1990 judgment alleging that prior to entering into his plea, he was not told that sexual battery was a specific intent crime. The trial court denied the motion, concluding it was irrelevant whether defendant knew sexual battery was a specific intent crime because at the time he entered into the plea, defendant’s intent was “to plead to any felony that did not require registration.” Defendant appeals the trial court’s ruling. We shall dismiss his appeal as untimely.
Proceedings
We omit the facts of the underlying offense as they are not relevant to resolution of the issue on appeal.
In 1990, defendant was charged with oral copulation by force (§ 288a, subd. (a)), rape by foreign object (§ 289, subd. (a)), and sexual battery (§ 243.4, subd. (a)). In exchange for dismissal of the remaining counts and a suspended sentence, defendant pleaded guilty to a single count of sexual battery. As part of his plea defendant was granted probation, which he later violated, resulting in the termination of his probation and imposition of a three-year prison term.
Nearly 15 years later (in December 2005), defendant filed a motion to withdraw his 1990 plea. In support of his motion, defendant argued the plea agreement had been violated because he entered into the plea with the understanding that he would not be required to register as a sex offender under section 290. After a later change in the law, however, he was required to register as a sex offender. The trial court denied the motion.
Then, in January 2007, defendant filed a motion to vacate the 1990 judgment. This time defendant argued he had not received adequate notice of the offense because, he claims, no one told him that sexual battery was a specific intent crime. In the trial court, defendant also argued that he had been deprived of the benefit of his plea bargain due to the change in section 290, which now requires him to register as a sex offender. The trial court denied that motion as well. Defendant appeals from this order, challenging only the court’s ruling on his claim that he received inadequate notice of the crime to which he was pleading guilty; his request for a certificate of probable cause was granted.
Discussion
On appeal, defendant argues the trial court erred in denying his motion to vacate the 1990 judgment. This is an appeal whose time has passed. “‘[A]n order is not appealable unless declared to be so by the Constitution or by statute. [Citations.]’ [Citation.] Stated simply, a criminal appeal by the defendant may be taken only from ‘a final judgment of conviction’ (§§ 1237, subd. (a), 1466, subd. (2)(A)) or from ‘any order made after judgment, affecting the substantial rights’ of the party (§§ 1237, subd. (b), 1466, subd. (2)(B)).” (People v. Gallardo (2000) 77 Cal.App.4th 971, 980.) “If interpreted broadly, the [last] phrase would apply to any postjudgment attack upon the conviction or sentence. Postjudgment trial level attacks seeking to nullify convictions and/or sentences come in many forms. They may be called, for example, motions to vacate, motions to correct, or motions to set aside judgments, petitions for writ of habeas corpus, or petitions for writ of error coram nobis. The court’s denial of relief in any such situation could affect the defendant’s substantial rights. However, decisional authority has limited the scope of the phrase, defining appealability more narrowly.” (Ibid.) As explained by People v. Gallardo, supra, 77 Cal.App.4th at pages 980-981, “A ruling denying a motion to vacate judgment would qualify semantically as an order after judgment affecting substantial rights, but such an order ordinarily is not appealable when the appeal would merely bypass or duplicate appeal from the judgment itself. [Citation.] ‘In such a situation appeal from the judgment is an adequate remedy; allowance of an appeal from the order denying the motion to vacate would virtually give defendant two appeals from the same ruling and, since there is no time limited [sic] within which the motion may be made, would in effect indefinitely extend the time for appeal from the judgment.’ [Citation.]” (Fn. omitted.) There are some exceptions to this general rule, but none that are applicable here. (Id. at p. 981.)
Judgment in this matter was entered on December 18, 1990. (People v. Thomas (1959) 52 Cal.2d 521, 529, fn. 3 [judgment in criminal cases rendered when orally pronounced].) Defendant had 60 days from that date to appeal from the judgment. (Cal. Rules of Court, rule 8.308(a).) It has been 16 years. He is barred from appealing the 16-year-old judgment now, even under the guise of an appeal from his second motion to vacate the judgment.
In an effort to circumvent the time bar to his claim, defendant argues that he could not have appealed from the judgment because, in essence, his claim is one for ineffective assistance of counsel, which could not be discerned from the record. Thus, defendant invites this court to treat his appeal as though it were a writ of habeas corpus and resolve it on the merits. But even if we were to do so, defendant, on this record, does not show a right to relief.
To establish ineffective assistance of counsel, defendant must demonstrate that counsel’s performance was deficient and defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696].) Defendant demonstrates neither.
Defendant contends trial counsel failed to advise him that sexual battery is a specific intent crime. But the only evidence in the record to support this contention is defendant’s own, self-serving declaration. There is no reporter’s transcript of the plea hearing and there is no declaration from trial counsel. Defendant has thus failed to establish that trial counsel was deficient.
Defendant also fails to establish how he was prejudiced by counsel’s conduct. (People v. Johnson (1995) 36 Cal.App.4th 1351, 1356 [defendant must show prejudice from misadvice].) Indeed, defendant’s only evidence in this regard is a declaration wherein he states, “[a]t this late date, I cannot say with any degree of certainty whether knowledge of this specific intent requirement in December 1990 at the time I entered the guilty plea to sexual battery, would have influenced or affected my decision to accept the plea bargain and enter the guilty plea.” Such an equivocal statement does not constitute a showing of prejudice either on appeal or on a writ of habeas corpus. (See, e.g., People v. Johnson, supra, 36 Cal.App.4th at pp. 1357-1358 [defendant states in the declaration attached to his habeas corpus petition that, had he been correctly advised on the maximum potential sentence, he would have taken his chances at trial and rejected the plea bargain].)
Disposition
The appeal is dismissed.
We concur: BLEASE, Acting P.J., NICHOLSON, J.