Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR030276. Mitchell C. Rigby, Judge.
Cathy A. Neff, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Kane, Acting P.J.
Appellant Alberto Munoz, Jr., having been charged with several drug-related offenses, entered a plea bargain in which he pled guilty to count 1 of six counts and admitted to special allegations of two prior prison terms. In exchange, he received probation under Penal Code section 1210.1 (referred to as Proposition 36) and was sent to a drug treatment program. The plea bargain did not explicitly address the remaining counts (counts 2 through 6) and no further action was ever taken on those counts by the prosecutor or the trial court. Thereafter, appellant violated his probation, and the trial court formally sentenced him to a six-year prison term on the matters to which he pled guilty under the plea bargain, but execution of that sentence was suspended and appellant was granted further probation and ordered to enroll in an inpatient substance abuse program. Months later, appellant once again violated the terms of his probation. The trial court then revoked appellant’s probation and reinstated the previously suspended prison sentence of six years.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Appellant appealed, arguing that his due process rights were violated because counts 2 through 6 were never dismissed as impliedly agreed under the original plea bargain. Respondent countered that the dismissal of counts 2 through 6 was not an implied term of the plea bargain; but even if it was, appellant failed to raise the issue at any time below, no harm was done by the alleged error and the appeal was untimely filed. As explained below, we shall dismiss the appeal as untimely.
FACTS AND PROCEDURAL HISTORY
On November 21, 2007, the Madera County District Attorney filed a criminal complaint accusing appellant, in count 1, of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)); in count 2, of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)); in count 3, of possessing drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)); in count 4, of possessing not more than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (b)); in count 5, of representing a false identity to a peace officer (§ 148.9, subd. (a)); and in count 6, of unlawful operation of a bicycle (Veh. Code, § 21201, subd. (d)). As to counts 1 and 2, the complaint included special allegations that appellant suffered prior convictions for which he had served separate prison terms pursuant to section 667.5, subdivision (b), which are referred to hereafter as the prison term enhancements.
On January 10, 2008, pursuant to a negotiated plea bargain, appellant pled guilty to count 1 and admitted to two of the alleged prison term enhancements, in exchange for being granted probation under Proposition 36. On February 25, 2008, at the sentencing hearing, the trial court placed appellant on three years of probation pursuant to Proposition 36, and he was ordered to enroll in a drug treatment program and to abide by other specified terms and conditions of probation. Imposition of sentence on count 1 was otherwise suspended. No action was taken at that time-or at anytime thereafter-on the remaining counts (counts 2 through 6), nor were they mentioned by either party or by the trial court.
Appellant has not directed our attention to any portion of the record showing an attempt was made in the trial court to raise the issue of the remaining counts or the lack of a dismissal thereof. Appellant’s reply brief concedes he did not raise these matters below.
On August 26, 2008, a petition was filed alleging that appellant violated his probation by failing to show up at his probation appointments and because, when the probation officer checked the address appellant represented to be his home address, it was learned that appellant did not actually reside there and his whereabouts were unknown. On November 3, 2008, appellant admitted to the allegations in the petition. As part of a new plea agreement, he agreed to enter a “felony drug court program” and to have a suspended prison sentence imposed, in exchange for one last opportunity for probation.
On December 1, 2008, the trial court revoked appellant’s probation and sentenced him to a prison term of six years, consisting of four years on count 1 (i.e., violation of Health & Saf. Code, § 11379, subd. (a)) and two one-year terms for each of the two prison term enhancements (§ 667.5, subd. (b)). The trial court suspended the execution of the prison sentence and placed appellant on probation for five years under specified terms and conditions. Appellant was ordered into a felony drug court program that required him to complete an inpatient (residential) substance abuse program.
On April 14, 2009, a petition was filed alleging that appellant had again violated his probation. The petition alleged, among other things, that appellant violated his probation by failure to appear for a scheduled probation appointment, being in possession of more than 28.5 grams of marijuana and drug paraphernalia, falsely representing his identity to a peace officer, failing to report a change of address, and “walking out” of the Salvation Army inpatient substance abuse program in which he had been enrolled.
On September 23, 2009, the trial court found that appellant had violated the terms and conditions of his probation as alleged in the petition. The trial court revoked appellant’s probation and reinstated the previously suspended six-year prison sentence. On October 16, 2009, appellant filed a notice of appeal from the September 23, 2009, pronouncement of sentence by the trial court.
DISCUSSION
Appellant claims that the original plea bargain included as an implied term the dismissal of counts 2 through 6 (see People v. Arata (2007) 151 Cal.App.4th 778, 787 [plea bargain may have implied terms]), and that the trial court’s failure to order the dismissal of those counts violated his due process rights. “When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon.” (People v. Walker (1991) 54 Cal.3d 1013, 1024.) Where a violation of a plea bargain is significant, a defendant has a due process right to a remedy. (Ibid.; see also People v. Mancheno (1982) 32 Cal.3d 855, 860-861.) Appellant asks that we specifically enforce the alleged implicit term of the plea bargain by dismissing, or directing the trial court to dismiss, counts 2 through 6. Specific enforcement of an unmet and significant provision of a plea bargain is one of the potential remedies available to a reviewing court in such cases. (People v. Walker, supra, at pp. 1026-1027.)
An obstacle to our doing so, however, is appellant’s failure to file a timely appeal. A notice of appeal must be filed within 60 days after the rendition of the judgment or the making of the order being appealed. (Cal. Rules of Court, rule 8.308(a); People v. Ramirez (2008) 159 Cal.App.4th 1412, 1420-1421.) The timely filing of the notice of appeal is, as a general matter, essential to appellate jurisdiction. (People v. Mendez (1999) 19 Cal.4th 1084, 1094.) If the notice of appeal is not timely filed, the appeal will be dismissed on jurisdictional grounds without reaching the merits. (In re Chavez (2003) 30 Cal.4th 643, 650.) “Unless the notice is actually or constructively filed within the relevant period, the appellate court has no jurisdiction to determine the merits of the appeal and must dismiss the appeal.” (In reGary R. (1976) 56 Cal.App.3d 850, 853.)
Appellant’s appeal is, in substance and effect, directed against the sentencing order of February 25, 2008, in which the trial court placed him on probation after accepting his guilty plea under the plea bargain. He claims the trial court erred because it failed to dismiss the remaining charges, counts 2 through 6. But appellant did not appeal from the February 25, 2008, sentencing order, nor did he appeal from the subsequent imposition of a prison sentence on December 1, 2008, in which appellant was sentenced on count 1 to a suspended prison term of six years. Appellant does not deny these were appealable judgments or orders. Nevertheless, appellant delayed filing a notice of appeal until October 16, 2009, following the trial court’s eventual revocation of his probation and reinstatement of the six-year prison term.
Under section 1237, subdivision (a), a defendant may appeal from “a final judgment of conviction, ” and the statute specifies that “[a] sentence [and] an order granting probation … shall be deemed to be a final judgment within the meaning of this section.” A defendant may also appeal from “any order made after judgment, affecting the substantial rights of the party.” (Id., subd. (b).) Thus, not only was the February 25, 2008, order granting probation appealable as a “final judgment” under section 1237, subdivision (a), but so was the subsequent order of December 1, 2008, imposing a stayed prison sentence. (See People v. Ramirez, supra, 159 Cal.App.4th at p. 1421 [“An order granting probation and imposing sentence, the execution of which is suspended, is an appealable order”].)
An order granting probation is appealable even though imposition of sentence is otherwise suspended. (People v. Cook (1975) 13 Cal.3d 663, 666, fn. 1.)
As aptly summarized in People v. Ramirez, supra, 159 Cal.App.4th at page 1421: “In general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment. [Citations.] Thus, a defendant who elects not to appeal an order granting or modifying probation cannot raise claims of error with respect to the grant or modification of probation in a later appeal from a judgment following revocation of probation. [Citations.] As relevant here, when a court imposes sentence but suspends its execution at the time probation is granted, a defendant has the opportunity to challenge the sentence in an appeal from the order granting probation. [Citation.] If the defendant allows the time for appeal to lapse during the probationary period, the sentence becomes final and unappealable. [Citation.] This is so regardless of the fact the defendant will not serve the sentence unless the court revokes and terminates probation before the probationary period expires.”
We believe these principles are applicable to the present appeal. The only error raised in appellant’s appeal is the trial court’s alleged failure to enter dismissal of counts 2 through 6 in sentencing him pursuant to the plea bargain. When, on February 25, 2008, pursuant to appellant’s plea bargain, the trial court placed him on Proposition 36 probation but failed to dismiss counts 2 through 6, appellant was clearly on notice of that claimed error. Appellant could have preserved his right to raise the present claim by filing a timely notice of appeal from the February 25, 2008, order, but he did not do so. And even if we were to conclude that appellant was entitled to raise the issue in an appeal from the subsequent imposition of a prison sentence on count 1, that conclusion would not assist appellant because, here, the imposition of that prison sentence occurred on December 1, 2008, when the trial court imposed a suspended six-year prison term on count 1. Appellant did not appeal from that imposition of sentence. We conclude under these facts that appellant’s appeal is untimely.
Appellant does not bring this issue to our attention as part of an appeal of other issues that were otherwise timely raised. This was the sole claim of error.
Although the subsequent sentencing determination made by the trial court on September 23, 2009, wherein the suspended six-year prison term was reinstated, was itself an appealable judgment or order, and appellant timely filed a notice of appeal from that order, he may not use an appeal from that subsequent determination to salvage his failure to appeal on a timely basis from the prior order or judgment. “In general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment. [Citations.]” (People v. Ramirez, supra, 159 Cal.App.4th at p. 1421.)
In so holding, we acknowledge the development in the case law clarifying that the forfeiture rule (i.e., the rule that a party’s claim of error is forfeited on appeal unless he or she brings the alleged error to the trial court’s attention) is not applied to a claim of a legally unauthorized sentence on the face of the record that is easily corrected (In re Sheena K. (2007) 40 Cal.4th 875, 887), or to a claim that a probation condition is facially unconstitutional as a pure question of law not requiring review of the sentencing record and easily remedied by the appellate court (id. at pp. 888-889; In re Victor L. (2010) 182 Cal.App.4th 902, 907; People v. Thompson (2009) 177 Cal.App.4th 1424, 1432). However, so far as we are able to tell, even in challenges of the type described in those cases, the basic rule that a defendant must file a timely notice of appeal as an essential requirement to appellate jurisdiction has not changed. That is, a timely appeal is more than an avoidance of a potential forfeiture or waiver, it is a jurisdictional prerequisite. (See In re Chavez, supra, 30 Cal.4th at p. 650 [timely appeal is generally essential to appellate jurisdiction]; Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 113 [timely appeal is a “jurisdictional prerequisite”].)
Appellant argues, in his reply brief, that his appeal should be treated as timely under the principles set forth in the case of People v. Hackler (1993) 13 Cal.App.4th 1049 (Hackler). In Hackler, one of the terms of the defendant’s probation was a “T-shirt condition, ” requiring that whenever the defendant was in public he must wear a shirt that stated conspicuously on one side, “‘I am on felony probation for theft, ’” and on the other side, “‘My record plus two six-packs equals four years.’” (Id. at p. 1052, fn. omitted.) After the defendant was found to be in violation of the terms and conditions of probation (including the “T-shirt condition”), his probation was revoked and he was sentenced to prison. (Id. at p. 1053.) He appealed from the revocation of probation and prison sentence. In his appeal, he challenged the constitutional validity of the “T-shirt condition.” The Court of Appeal permitted the defendant to attack the validity of the probation condition on appeal even though he had failed to appeal from the initial order granting probation. (Id. at pp. 1053 1057.) In doing so, the Court of Appeal observed there was an established appellate practice to reach the merits of challenges to invalid probation conditions regardless of how the issue may have come to the court. (Id. at p. 1057.)
Appellant argues the present appeal is analogous to the situation in Hackler. We disagree. First, in the present case, there was no invalid probation condition that had created a legally unjustified burden on appellant. We are not persuaded that the trial court’s failure to formally dismiss counts 2 through 6-an omission that did not affect the duration or other terms of the sentence that appellant received-is substantially the same or similar to the improper probation condition imposed on the defendant in Hackler. Second, we note that in Hackler, the invalid probation condition was itself among the terms and conditions the defendant was found to have violated when his probation was subsequently revoked and the prison sentence was imposed. (Hackler, supra, 13 Cal.App.4th at p. 1053.) Thus, the prior condition of probation and the subsequent revocation of probation and sentencing were related or intertwined. That was not the case here. Here, the trial court’s failure to dismiss counts 2 through 6 on February 25, 2008, when appellant was supposed to have received what was promised in the plea bargain, had no relationship to, or bearing upon, the subsequent sentencing determination in September of 2009, from which appellant has appealed. We conclude that Hackler is distinguishable and does not assist appellant in this case. Our conclusion remains: the appeal is untimely.
We also find People v. Munoz (1975) 51 Cal.App.3d 559, 563-565, to be distinguishable because it involved a constitutional claim of ineffective assistance of counsel. The Court of Appeal held it could not review issues raised by the appellant, other than the ineffective assistance of counsel claim, due to the appellant’s failure to timely appeal.
DISPOSITION
The appeal is dismissed as untimely.
WE CONCUR: Poochigian, J., Vortmann, J.
Judge of the Tulare Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.