Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. Nos. 95M03740 & TA053155. Judith L. Meyer, Judge.
A. William Bartz, Jr., 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, Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Eric Orozco, also known as Carlos Rodriguez and David Rodriguez, appeals from three orders denying petitions to dismiss trial court case Nos. 95M03740, TA043519 and TA053155 pursuant to Penal Code sections 1203.4 and 1203.4a. For the reasons discussed herein, we conclude that we lack jurisdiction to consider case Nos. 95M03740 and TA043519 and transfer those matters to the appellate division of the superior court (appellate division) for resolution. The order pertaining to case No. TA053155 is affirmed.
All further statutory references are to the Penal Code unless otherwise indicated.
We do not include any facts pertaining to the underlying offenses, as they are not germane to the issues before us.
On April 18, 1995, the district attorney filed a criminal complaint against defendant, alleging four counts of misdemeanor burglary (§ 459) (case No. 95M03740). On April 20, 1995, after pleading no contest, defendant was convicted of one of the counts and placed on summary probation for 12 months on condition, among others, that he spend 30 days in jail.
On October 11, 1995, the district attorney filed a felony complaint against defendant, alleging one felony count of grand theft person (§ 487, subd. (c)) and a misdemeanor count for giving false information to a police officer (§ 148.9, subd. (a)) (case No. TA043519). On the People’s motion, before a preliminary hearing, the felony grand theft person count was amended to a misdemeanor pursuant to section 17, subdivision (b)(4). After pleading no contest, defendant was convicted of misdemeanor grand theft. The trial court denied probation and sentenced defendant to 60 days in jail.
Section 17 states in part: “(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] . . . [¶] (4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint.”
On March 11, 1999, the district attorney filed, a two-count felony complaint alleging receipt of stolen property, a motor vehicle, (§ 496d, subd. (a)) and receiving stolen property (§ 496, subd. (a)) (case No. TA053155). On April 7, 1999, defendant was convicted of receiving stolen property after pleading no contest, and the magistrate issued a certificate and order to the superior court pursuant to section 859a. On May 5, 1999, the trial court dismissed the receipt of a stolen vehicle count and sentenced defendant on the remaining count to 90 days in jail, suspended imposition of sentence and placed him on three years formal probation. Probation was subsequently revoked and then reinstated.
Section 859a states in part: “(a) If the public offense charged is a felony not punishable with death, the magistrate shall immediately upon the appearance of counsel for the defendant read the complaint to the defendant and ask him or her whether he or she pleads guilty or not guilty to the offense charged therein and to a previous conviction or convictions of crime if charged. While the charge remains pending before the magistrate and when the defendant’s counsel is present, the defendant may plead guilty to the offense charged, or, with the consent of the magistrate and the district attorney or other counsel for the people, plead nolo contendere to the offense charged or plead guilty or nolo contendere to any other offense the commission of which is necessarily included in that with which he or she is charged, or to an attempt to commit the offense charged and to the previous conviction or convictions of crime if charged upon a plea of guilty or nolo contendere. . . . Upon accepting the plea of guilty or nolo contendere the magistrate shall certify the case, including a copy of all proceedings therein and any testimony that in his or her discretion he or she may require to be taken, to the court in which judgment is to be pronounced at the time specified under subdivision (b), and thereupon the proceedings shall be had as if the defendant had pleaded guilty in that court. . . .”
On January 30, 2007, defendant filed three separate petitions to expunge each of the above-described convictions. In each case, the trial court’s minute order states that the petition was “read, considered and denied.”
Given our resolution of this matter, we need not discuss possible ambiguities and technical defects in the petitions.
Defendant filed two notices of appeal from the denials of his petitions; appellate case No. B198865, from case Nos. 95M03740 and TA053155, and appellate case No. B198862, from case No. TA043519. We ordered consolidation of the two appeals.
DISCUSSION
I
DEFENDANT’S CONTENTION
Although defendant appeals denial of his petitions to dismiss convictions in three trial court proceedings, he only argues one. He contends that the trial court abused its discretion in denying his petition to dismiss case No. TA043519 under section 1203.4a. He argues that there is no evidence that he picked up any “new offenses” in the year after judgment was rendered in that case, mandating that the trial court grant his petition.
Section 1203.4a provides in relevant part: “(a) Every defendant convicted of a misdemeanor and not granted probation shall, at any time after the lapse of one year from the date of pronouncement of judgment, if he or she has fully complied with and performed the sentence of the court, is not then serving a sentence for any offense and is not under charge of commission of any crime and has, since the pronouncement of judgment, lived an honest and upright life and has conformed to and obeyed the laws of the land, be permitted by the court to withdraw his or her plea of guilty or nolo contendere and enter a plea of not guilty; . . . the court shall set aside the verdict of guilty; . . . and in either case the court shall thereupon dismiss the accusatory pleading against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 12021.1 of this code or Section 13555 of the Vehicle Code. . . .”
II
JURISDICTION
At the outset, we are confronted with the question, not raised in the parties’ initial briefs, as to whether we have jurisdiction to consider defendant’s appeals. Therefore, on January 30, 2008, we requested supplemental briefing on the question, “Does this court have jurisdiction to hear the appeal from case Nos. 95M03740, TA053155 or TA043519 or is such jurisdiction properly in the appellate division of the superior court?” The parties have filed supplemental briefs which we have read and considered. We conclude that we only have jurisdiction to consider case No. TA053155.
In People v. Nickerson (2005) 128 Cal.App.4th 33 (Nickerson), a complaint was filed against the defendant, alleging a felony and two misdemeanors. After the preliminary examination, the trial court acting as magistrate held defendant to answer only on the two misdemeanors. After the jury convicted him of one of them, the defendant filed a notice of appeal in the superior court which directed the appeal to the Court of Appeal. That court concluded that it did not have jurisdiction to hear the appeal and transferred the matter to the appellate division pursuant to Government Code section 68915. (Nickerson, supra, at p. 36.)
Government Code section 68915 provides: “No appeal taken to the Supreme Court or to a court of appeal shall be dismissed for the reason only that the same was not taken to the proper court, but the cause shall be transferred to the proper court upon such terms as to costs or otherwise as may be just, and shall be proceeded with therein, as if regularly appealed thereto.”
The Court of Appeal in Nickerson reasoned that it had jurisdiction over felony cases and that the appellate division had jurisdiction over misdemeanor cases. (Nickerson, supra, 128 Cal.App.4th at p. 36.) A “felony case” is one in which a felony is charged. (Ibid.) To determine when a felony is charged, one must examine the accusatory pleading. (Id. at p. 37.) The People’s first pleading in a felony case is the indictment, information or complaint if certified to the superior court under section 859a. (Ibid.) Quoting from our Supreme Court’s decision in People v. Serna (1985) 40 Cal.3d 239, 257, Nickerson continued, “‘A felony complaint, unlike a misdemeanor complaint, does not confer trial jurisdiction. It invokes only the authority of a magistrate, not that of a trial court. [Citation.] . . . The felony complaint functions to bring the defendant before the magistrate for an examination into whether probable cause exists to formally charge him with a felony. Only if probable cause exists may an information invoking the trial jurisdiction of the superior court be filed. . . . The misdemeanor complaint, by contrast, is not a preliminary accusation.’” (Nickerson, supra, at p. 37.) Nickerson concluded that a defendant is not charged with a felony “until an information or indictment is filed or a complaint is certified to the superior court. . . . When the matter goes before the magistrate for a preliminary examination and the court as magistrate reduces all of the felony charges from felonies to misdemeanors under section 17, subdivision (b)(5),” the defendant is never charged with a felony. (Id. at p. 38.) It further concluded that “trial court unification—and the resulting elimination of the municipal court—did not change the court to which cases were to be appealed,” misdemeanors still must be appealed to the appellate division. (Ibid.)
We agree with Nickerson’s analysis. Case No. 95M03740 was filed as a misdemeanor complaint and did not allege any felonies. As such, an appeal in that case should have been taken to the appellate division. (§ 1466; Nickerson, supra, 128 Cal.App.4th at p. 36.) Case No. TA043519 was initially filed as a felony complaint, containing one felony count and one misdemeanor count. Prior to a preliminary hearing, the People moved to amend the complaint to reduce the felony count to a misdemeanor pursuant to section 17, subdivision (b)(4). Hence, the defendant was never charged with a felony because the charge in the complaint never resulted in the filing of an information, indictment or certification to the superior court pursuant to section 859a. This matter too was therefore merely a misdemeanor, the appeal from which should have been filed in the appellate division. We therefore transfer these two cases to the appellate division of the superior court. (Nickerson, supra, 128 Cal.App.4th at pp. 39-40; Govt. Code, § 68915.)
Defendant agrees that jurisdiction over case Nos. 95M03740 and TA043519 rests in the appellate division of the superior court. In his supplemental brief, the Attorney General only discusses case No. TA043519 and agrees with our conclusion as to that case.
In contrast to the foregoing two cases, case No. TA053155 was filed as a felony complaint. Defendant pled guilty to one of the felony counts prior to the preliminary hearing and the magistrate certified the matter to the superior court for rendition of judgment pursuant to section 859a. As a result, the first felony pleading was the complaint because it had been certified to the superior court. Therefore, the appeal in that matter is properly before this court.
III
APPEAL OF TA053155 WAIVED
Although appellant has filed notices of appeal from three trial court proceedings, including case No. TA053155, and states in his opening brief that “[t]his is an appeal from a denial of petitions and orders for expungement in case Nos. TA043519 and TA053155,” his brief fails to state any argument or cite any authority as to case No. TA053155. “‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]’ [Citations.]” (People v. Wilkinson (2004) 33 Cal.4th 821, 846, fn. 9; see also People v. Williams (1997) 16 Cal.4th 153, 250 [“Moreover, defendant’s due process and Eighth Amendment arguments are perfunctorily raised without argument in support and, for that reason as well, need not further be addressed”]; People v. Stanley (1995) 10 Cal.4th 764, 793; In re David D. (1997) 52 Cal.App.4th 304, 311, fn. 7.) Consequently, defendant waived his contention as to case No. TA053155, if he ever intended to assert it.
DISPOSITION
The appeals from case Nos. 95M03740 and TA043519 are transferred to the appellate division of the superior court. The order denying the petition to dismiss case No. TA053155 is affirmed.
We concur:
DOI TODD, Acting P. J., CHAVEZ, J.