Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, No. BA351055, Craig Richman, Judge, David Horowitz, Judge.
Meredity J. Watts, 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, Senior Assistant Attorney General, Michael R. Johnsen, Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent
COFFEE, J.
Appellant was charged by felony complaint with possession of a controlled substance (cocaine base). (Health & Saf. Code, § 11350, subd. (a).) The complaint also alleged that he had a prior strike conviction (robbery), and that he had served four prior prison terms. (Pen. Code, §§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d); 667.5, subd. (b).)
All further statutory references are to the Penal Code unless otherwise stated.
Appellant withdrew his not guilty plea and entered into a plea agreement. He pleaded guilty to possessing a controlled substance and admitted the prior "strike" conviction allegation. In exchange, the court struck the prior strike conviction under section 1385. It sentenced appellant to a total term of two years in prison, granted him sixteen days of custody credit and imposed fines and fees. Appellant contends that the court erred by denying him probation under Proposition 36. Because he failed to obtain a certificate of probable cause, we dismiss the appeal.
The facts are taken from the probation report because there was no preliminary hearing before appellant pled guilty.
During a traffic stop on January 3, 2009, appellant admitted that he was on parole. When he got out of his car, he tossed rock cocaine on the ground.
DISCUSSION
Appellant contends that the court erred by failing to grant him probation under Proposition 36. His appeal must be dismissed.
Certificate of Probable Cause
Section 1237.5, subdivision (a) provides that a defendant may not appeal a judgment of conviction entered on a plea of guilty or nolo contendere unless he or she has filed a statement with the trial court "showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings," and has obtained a certificate of probable cause for the appeal. (People v. Mendez (1999) 19 Cal.4th 1084, 1096.) If, however, the appeal is based solely upon grounds occurring after entry of the plea, which do not challenge its validity, a certificate of probable cause is not required. (Cal. Rules of Court, rule 8.304(b)(4)(B); People v. Cuevas (2008) 44 Cal.4th 374, 379.)
"'[A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself' and thus requires a certificate of probable cause. [Citation.]" (People v. Shelton (2006) 37 Cal.4th 759, 766.) "[I]f the defendant agreed to a specific sentence as part of his plea agreement[,] the sentence is an issue that arose before entry of the guilty plea, and in order to challenge that sentence on appeal, the defendant must obtain a certificate of probable cause." (People v. Vargas (2007) 148 Cal.App.4th 644, 652.) Here, appellant agreed to a two-year sentence as part of his plea agreement. His challenge to the court's denial of probation is a challenge to the validity of the plea itself, which requires a certificate of probable cause.
The court declined appellant's request for a certificate of probable cause. He has not shown that the court abused its discretion in declining to certify the appeal. Without a certificate of probable cause, the appeal is inoperative and must be dismissed. (Cal. Rules of Ct., 8.304(b); People v. Stubbs (1998) 61 Cal.App.4th 243, 245; People v. Castelan (1995) 32 Cal.App.4th 1185, 1187.)
DISPOSITION
The appeal is dismissed.
We concur: GILBERT, P.J., PERREN, J.