Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, Nos. FSB703296, FSB037944 & FSB059284, Michael M. Dest, Judge.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant, Nhut Kein Lieu, pled guilty in two cases (FSB703296 and FSB059284) and was sentenced to an aggregate term of five years in state prison pursuant to a sentence bargain. He originally filed a notice of appeal in one of the cases, challenging the validity of the plea in that case, but the trial court denied his request for a certificate of probable cause. By an amended notice of appeal, defendant challenged the sentence or other matters occurring after the plea in case No. FSB703296, and did not request a certificate of probable cause. By an order dated January 30, 2009, this court construed the amended notice of appeal filed on March 13, 2008, to be a challenge to the judgments in case Nos. FSB059284 and FSB037944, as well as the judgment in case No. FSB703296.
After defendant’s counsel filed an opening brief in accordance with the procedures outlined in People v. Wende (1979) 25 Cal.3d 436, respondent filed a brief in which it argued the appeal must be dismissed for failure to obtain a certificate of probable cause. We dismiss the appeal for lack of a certificate of probable cause to challenge the negotiated sentence as to case Nos. FSB059284 and FSB703296. We dismiss the appeal in case No. FSB037944 because no appealable judgment or order was made in that case.
BACKGROUND
FSB037944
In 2003, while defendant was a patient at Patton State Hospital, he brutally beat his roommate, causing lacerations to his face, broken nose, severe eye injury (orbital displacement), and an esophageal injury that required surgery. When interviewed, defendant explained that he could not sleep, so he wanted to kill his roommate.
Defendant was charged with attempted murder (Pen. Code, §§ 664, 187, subd. (a)) and aggravated mayhem (§ 205). Respecting both counts, it was further alleged that defendant personally inflicted great bodily injury. (§ 12022.7, subd. (a).) Due to the suspension of criminal proceedings due to doubts as to defendant’s mental competence (§ 1368, et seq.) prior to the preliminary hearing and subsequent delays due to pending proceedings in Orange County, the information alleging those violations was not filed until January 24, 2006.
All further references are to the Penal Code unless otherwise indicated.
However, in March 2006, criminal proceedings were again suspended due to defendant’s mental incompetence, and on August 28, 2006, defendant was committed to Patton State Hospital until competence was restored, not to exceed three years. Defendant remains subject to that commitment.
FSB059284
On November 28, 2006, while still a patient at Patton State Hospital, defendant violently assaulted a psychiatric technician while seated in the courtyard on break. Defendant approached her and, without provocation, began punching her violently on the head and face, causing the victim to lose consciousness. In addition to loss of consciousness, the victim suffered swelling of the face, a swollen left ear, a lacerated and swollen lip, loosened front teeth, and a large bruise on the back of her head. There may also have been injuries to her neck, based on irregularities noted on a CT scan.
When asked by a bystander why he attacked the victim, defendant responded that he heard voices. In a subsequent interview, defendant told his doctor he was angry because the victim would not give him his Cogentin, that she made fun of him and that he wanted to go to county jail.
Defendant was charged with one count of assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), with a special allegation that he personally inflicted great bodily injury in the commission of the crime. (§ 12022.7, subd. (a).) At the pre-preliminary hearing conference held on February 15, 2007, the court declared a doubt as to defendant’s mental competence (§ 1368, et seq.), so criminal proceedings were suspended until December 20, 2007, when they were reinstated. On January 2, 2008, pursuant to a plea bargain, defendant pled guilty to the aggravated assault. The terms of the agreement were that defendant would be sentenced to one-third the middle term (one year), which would run consecutive to the sentence in FSB703296.
The change of plea form actually states that the term would run consecutive to case No. FSB059284, but that is assumed to be an oversight since the change of plea was being made in case No. FSB059284. We agree with the parties that the change of plea was meant to include reference to case No. FSB703296.
FSB703296
On August 21, 2007, a felony complaint was filed alleging two counts of assault with a deadly weapon (§ 245, subd. (a)(1)), specifically a sock containing two size “D” batteries. At the pre-preliminary hearing conference held on August 30, 2007, the court declared a doubt as to defendant’s present mental competence (§ 1368, et seq.), and criminal proceedings were suspended. On December 20, 2007, the court considered reports by three psychologists, concluded defendant was competent to stand trial, and reinstated criminal proceedings.
On January 2, 2008, defendant entered into a plea agreement disposing of this case along with case No. FSB059284. In return for his agreement to plead guilty to both counts, it was agreed he would be sentenced to the middle term of three years on count 1, with a consecutive term of one year for count 2 (representing one-third the middle term of three years). After entering his guilty plea, defendant waived his right to a probation report, and requested immediate sentencing. Defendant was sentenced to an aggregate term of four years on case No. FSB703296, which was deemed the principal case, and the one-year term for case No. FSB059284 was ordered to run consecutive to that term.
On February 27, 2008, defendant filed a notice of appeal in case No. FSB703296, indicating an intent to challenge the validity of his guilty plea. However, his request for a certificate of probable cause was denied. On March 3, 2008, defendant filed an amended notice of appeal, challenging the sentence or other matters occurring after the plea. In an order filed on March 13, 2008, we construed the appeal to include case Nos. FSB037944 and FSB059284.
DISCUSSION
At his request, this court appointed counsel to represent defendant on appeal. Counsel has filed a brief under the authority of People v. Wende, supra, 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. However, the respondent filed a brief arguing for dismissal of the appeal because (a) defendant waived his appeal rights in his plea agreement, and (b) defendant did not obtain a certificate of probable cause. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record.
FSB037944
This charges filed in case No. FSB037944 have never been resolved. The record shows that on August 28, 2006, defendant was committed to Patton State Hospital following proceedings in which defendant was found to be incompetent to stand trial. The record shows that criminal proceedings have not been reinstated so no final judgment has been entered in that case. Lack of a final judgment is a jurisdictional defect. (Eckhart v. Genuine Parts Distributors (1997) 53 Cal.App.4th 1340, 1343.) A defendant can appeal only from final judgments and those orders deemed by statute to be final judgments. (People v. Moore (2003) 105 Cal.App.4th 94, 98-99.)
Because no final judgment or appealable order has been entered in case No. FSB037944, the appeal must be dismissed.
The commitment order in the competency proceedings would have been appealable, but any appeal from that judgment is untimely since the commitment was ordered in 2006, approximately two years prior to the filing of the notice of appeal.
FSB059284 and FSB703296
The waiver of rights forms executed by defendant in case Nos. FSB059284 and FSB703296 included waivers of the right to appeal “from any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain.” Such a general waiver of the right to appeal, given as part of a negotiated plea agreement, will not be construed to bar the appeal of sentencing errors occurring subsequent to the plea, unless the plea agreement specifies the sentence to be imposed and by its terms, the waiver of appellate rights specifically extends to any right to appeal such sentence. (People v. Panizzon (1996) 13 Cal.4th 68, 85-86.) In Panizzon, the change of plea form specifically provided that the defendant waived and gave up his right to appeal from the sentence he would receive in the case. (Id. at p. 82.)
The waiver of appeal rights in the present case is more generic (see People v. Vargas (1993) 13 Cal.App.4th 1653, 1662), so the amended notice of appeal, designating the appeal to be from the sentence or other matters occurring after the plea, on its face, appears to be operable. However, that does not end our inquiry.
The defendant agreed to the specific sentence term to be imposed as a consequence of his guilty plea. As such, the length of the sentence was an integral part of the plea agreement, and any challenge to the negotiated sentence is viewed as a challenge to the plea itself. (People v. Panizzon, supra, 13 Cal.4th at p. 79.) Therefore, a certificate of probable cause was required in order to attack the sentence. Failure to obtain a certificate of probable cause requires dismissal. (People v. Mendez (1999) 19 Cal.4th 1084, 1096.)
Respondent also addressed the grounds stated in the original notice of appeal, in which defendant explained his guilty plea was invalid because he was incompetent at the time of the plea, and he was deprived of effective assistance of counsel. That notice of appeal was superseded by the amended notice of appeal, raising only matters occurring after the plea. (See People v. Mack (1961) 197 Cal.App.2d 574, 578 [an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading], citing Meyer v. State Board of Equalization (1954) 42 Cal.2d 376, 384-385.) For this reason, we do not need to address operability of that notice of appeal.
DISPOSITION
The appeal is dismissed.
We concur: Ramirez, P. J., King, J.