Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FWV020217. Ingrid A. Uhler, Judge.
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Petition denied.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant and Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Deana L. Bohenek, Deputy Attorney General, for Plaintiff and Respondent.
McKINSTER, Acting P. J.
Defendant and appellant Manuel Quirio Mazariegos appeals after the trial court revoked his probation and sentenced him to state prison. He has also filed a petition for writ of habeas corpus. The writ petition has been ordered considered together with the appeal. The gist of both attacks is the same: That his five-year probation expired as a matter of law before the court took the appropriate actions to assert jurisdiction over him. We affirm the court’s orders and deny the petition for habeas corpus.
FACTS AND PROCEDURAL HISTORY
The facts of the underlying crimes are unimportant to the issues to be addressed here. Suffice to say that defendant was convicted of two counts of sexual battery (Pen. Code, § 243.4, subd. (a)) for molesting his teenage daughter over a period of months. Defendant was sentenced on February 22, 2001, when he was granted five years’ probation.
In September 2003, defendant stopped reporting to his probation officer. This was a violation of the terms of his probation.
On February 8, 2006, the County of San Bernardino Probation Department filed a petition to revoke defendant’s probation. The petition noted that defendant’s probation was set to expire on February 20, 2006. Judge Ingrid A. Uhler signed and dated the petition, summarily revoking defendant’s probation on February 15, 2006. A minute order, dated March 2, 2006, recited that defendant’s probation was ordered revoked to retain jurisdiction and a bench warrant issued for his arrest.
Defendant was later arrested on the bench warrant. On July 21, 2006, the court arraigned defendant on the allegations that he was in violation of his probation.
Between the July 21, 2006, appearance and a hearing August 24, 2006, the probation department issued a memorandum requesting termination of defendant’s probation, apparently based on the calculation that the term of probation had expired by operation of law when the bench warrant was actually processed, in March 2006. The court reviewed the matter, however, and determined that the order revoking defendant’s probation had been filed on February 15, 2006, before the termination of defendant’s probation. The court therefore concluded that it retained jurisdiction over defendant.
In September 2006, defendant admitted the violation of probation. He was sentenced to two years in state prison.
ANALYSIS
I. Defendant’s Appeal
A. Defendant’s Claim Is Not Cognizable on Appeal
Neither defendant nor his counsel requested or obtained a certificate of probable cause for his appeal.
Penal Code section 1237.5 requires that, after a guilty plea or plea of nolo contendere, or a revocation of probation after an admission of violation, a defendant must obtain a certificate of probable cause demonstrating a reasonable constitutional, jurisdictional or other ground for appeal, going to the legality of the proceedings. Defendant’s claim of lack of subject matter jurisdiction is a jurisdictional ground for appeal going to the legality of the proceedings. His failure to obtain a certificate of probable cause precludes appellate review of the claim.
Two types of issues may be raised in a guilty or nolo contendere plea appeal without issuance of a certificate: (1) search and seizure issues for which an appeal is provided by statute; and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. (People v. Emery (2006) 140 Cal.App.4th 560, 564.) Here, of course, the substance of defendant’s claim is an attack on the validity of his admission of the probation violation. This is precisely the kind of claim which requires a certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68, 76.)
B. Defendant’s Claim That His Counsel Was Incompetent in Failing to Secure a Certificate of Probable Cause Is Reviewable by Petition for Writ of Habeas Corpus
To the extent defendant asserts a claim of ineffective assistance of counsel (IAC) for failure to obtain a certificate of probable cause, that claim may not be raised on appeal, but is more properly addressed via a petition for writ of habeas corpus. Defendant has filed such a writ; his IAC claim is discussed in the portion of this opinion addressing the writ petition.
C. Under the Circumstances Here, In re Benoit Does Not Apply to Permit Late Filing of a Request for a Certificate of Probable Cause
Defendant argues that, where his attorney failed to apply for a certificate of probable cause, Penal Code section 1237.5 should contain an exception to its time limits to permit a late request for a certificate of probable cause. Defendant analogizes to In re Benoit (1973) 10 Cal.3d 72, in which the California Supreme Court held that, where an incarcerated defendant’s attorney agrees to file a notice of appeal on the defendant’s behalf, but then neglects to do so in a timely fashion, the appellate court may construe a late notice of appeal as having been timely filed if the defendant displayed diligence in attempting to have the attorney discharge the responsibility. (Id. at pp. 86-87, 89.)
In People v. Perez (2007) 148 Cal.App.4th 353, the Court of Appeal saw “no principled basis to distinguish constructive filing of a statement of reasonable grounds for appeal from constructive filing of a notice of appeal. The trial attorney has the same duty to assist an incarcerated client in perfecting an appeal regardless of whether the defendant pled guilty or was convicted after a trial. And the incarcerated defendant’s reliance on counsel’s promise to assist in perfecting the appeal is the same whether the defendant pled guilty or was convicted after a trial.” (Id. at p. 368.) Thus, “in the context of a guilty or nolo contendere plea, when a trial attorney agrees to file a notice of appeal for an indigent, incarcerated client, the attorney must also assist in preparing a statement of reasonable grounds for appeal if the defendant has asked for help with such a statement or if the attorney is aware of an arguable issue that is cognizable on appeal only with the trial court’s issuance of a certificate of probable cause.” (Ibid.)
Accordingly, the Perez court concluded that “the Benoit doctrine of constructive filing applies when an incarcerated defendant relies on trial counsel’s promise to file a statement of reasonable grounds for appeal or trial counsel’s promise to perfect an issue for appeal which requires a certificate of probable cause, but counsel then neglects to assist the defendant in preparing and filing a statement of reasonable grounds for appeal. We further conclude the Benoit doctrine applies when an incarcerated defendant relies on trial counsel’s promise to file a notice of appeal, and counsel identifies a cognizable issue in the notice of appeal that requires issuance of a certificate of probable cause, but neglects to assist the defendant in preparing and filing a statement of reasonable grounds for appeal.” (People v. Perez, supra, 148 Cal.App.4th 353, 369.)
Nevertheless, defendant here has failed to meet the requirements which would make the Benoit doctrine applicable. He has pointed to no promise of counsel to file a notice of appeal, and has demonstrated no reliance on any such representation or promise. (In re Chavez (2003) 30 Cal.4th 643, 658.) Defendant himself filed his notice of appeal herein. Moreover, defendant failed to follow up diligently himself; indeed, he acknowledges that he has not, to date, filed a belated request in the trial court for issuance of a certificate of probable cause.
Defendant has failed to meet any of the salient criteria for applying the Benoit doctrine of constructive filing to his failure to obtain a certificate of probable cause. The claim is not cognizable on appeal.
D. Defendant’s Claim Fails on the Merits
An order revoking probation must be made within the probationary period. (People v. White (1982) 133 Cal.App.3d 677, 682.)
Penal Code section 1203.2, subdivision (a), provides in relevant part: “At any time during the probationary period of a person released on probation . . . if any probation officer or peace officer has probable cause to believe that the probationer is violating any term or condition of his or her probation or conditional sentence, the officer may, without warrant or other process and at any time until the final disposition of the case, rearrest the person and bring him or her before the court or the court may, in its discretion, issue a warrant for his or her rearrest. Upon such rearrest, or upon the issuance of a warrant for rearrest the court may revoke and terminate such probation if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation, . . . The revocation, summary or otherwise, shall serve to toll the running of the probationary period.”
Defendant argues that the record shows that “it was not until after [his] probation had expired by operation of law, that on March 2, 2006, the trial court attempted to summarily revoke probation and issue a bench warrant for [his] arrest.”
Defendant is mistaken.
It is true that a minute order dated March 2, 2006, states that the court proceeded on the probation department’s ex parte petition: “It being alleged that defendant has failed to comply with term 03 04 of his/her probation order. [¶] Court orders Probation revoked for the purposes of retaining jurisdiction. [¶] Bench Warrant issued; Bail set at NO BAIL. May not forfeit. [¶] Reason: ALLEGED VIOLATION OF PROBATION.”
The minute order did not, however, accurately reflect the actual proceedings of the court. The record plainly shows that Judge Uhler received the petition for revocation of probation within the time before defendant’s probation expired. She signed and dated the revocation petition on February 15, 2006, before defendant’s probation expired, and she directed the bench warrant issued on that date. Boxes reciting that “Probation is revoked,” and that “Bench Warrant is issued for arrest of said defendant,” were clearly marked on the court’s signed order granting the petition.
The issue was raised below at the hearing in August 2006. The court researched its own records and actions, and determined, as we have found, that the petition for revocation had been transmitted to it on February 15, 2006, five days before defendant’s probation expired. The court specifically stated at the August hearing that, “I filed the petition and signed it on February 15th, 2006, which preceded the termination of probation by approximately 7 days, and I issued a no bail warrant.”
Defendant urges that the petition and order were not file stamped. The absence of a file stamp is not determinative. Under California Rules of Court, rule 8.25(b)(1), “A document is deemed filed on the date the clerk receives it.” Further, under Evidence Code section 664, “It is presumed that official duty has been regularly performed.” On or before February 15, 2006, the clerk had received the petition to revoke defendant’s probation. The document was presented to the court for action on that date; the judge duly signed the document, revoking defendant’s probation and issuing a warrant for his arrest. The duty of the clerk to thereupon take charge of the signed document, maintaining it in the court’s files, and necessarily “receiving” said document within the court, is presumed to have been properly carried out.
To the extent that defendant complains the warrant was not “issued” until March 2, 2006, we reject that contention also. “The issuance of a warrant is a judicial act based on facts found by the magistrate. [Citations.]” (Dunn v. Municipal Court (1963) 220 Cal.App.2d 858, 869.) The court herein found the requisite facts and performed its judicial act on February 15, 2006.
Defendant’s probation was properly summarily revoked before the probation period expired. The court therefore retained jurisdiction over him and properly sentenced him to state prison.
II. Habeas Corpus Petition
A. Petitioner’s IAC Claim Fails
Petitioner raises his IAC claim in his habeas corpus petition: “The public defender did not litigate the lack of jurisdiction issue and obtain a certificate of probable cause because, without investigating the facts and the law, she blindly believed the trial court’s assertion that it had jurisdiction to revoke petitioner’s probation and sentence him to state prison.”
As noted, the crux of petitioner’s argument is that, “On March 2, 2006, the trial court ordered petitioner’s probation summarily revoked for purposes of retaining jurisdiction. It also issued a bench warrant for his arrest.” He thus claims that his appointed counsel was incompetent for failing to raise and litigate this potentially meritorious issue.
To prevail on a claim of ineffective assistance of counsel the defendant must establish that defense counsel’s performance fell below an objective standard of reasonableness, and that there is a reasonable probability the defendant would have obtained a more favorable result absent counsel’s shortcomings. (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)
In view of our conclusion that the trial court did act properly to preserve jurisdiction over petitioner, counsel’s performance in failing to further litigate that contention could not possibly have prejudiced him. (Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674]; In re Jones (1996) 13 Cal.4th 552, 561.)
DISPOSITION
The trial court’s orders are affirmed. The petition for writ of habeas corpus is denied.
We concur: RICHLI J., GAUT J.