Opinion
F074187
02-07-2018
THE PEOPLE, Plaintiff and Respondent, v. MARIANO RUIZ PEREZ, Defendant and Appellant.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. F15902655 & F15902931)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Peña, J.
-ooOoo-
On August 13, 2015, in case No. F15902655, appellant Mariano Ruiz Perez pled no contest to receiving a stolen vehicle (Pen Code, § 496d, subd. (a)/count 1) and felony receiving stolen property (§ 496, subd. (a)/count 2) and admitted five prior prison term enhancements (§ 667.5, subd. (b)). In case No. F15902931, Perez pled no contest to receiving a stolen vehicle (count 1) and unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)/count 2) and he admitted five prior prison term enhancements. Perez also admitted violating the terms of his postrelease community supervision (PRCS) in two unrelated cases.
All further statutory references are to the Penal Code, unless otherwise noted.
On appeal, Perez contends his plea must be vacated because the trial court's improper plea negotiations that promised leniency in exchange for his plea rendered the plea involuntary. We conclude this issue is not cognizable and dismiss Perez's appeal.
FACTS
On September 8, 2015, in case Nos. F15902655 and F15902931, the court suspended imposition of sentence and placed Perez on probation for four years on the condition that he serve a year in custody. As a term of probation, the court also required Perez to participate in an inpatient drug rehabilitation program.
The court also reinstated Perez's PRCS in two unrelated cases.
On July 12, 2016, following a contested hearing, the court found that Perez violated his probation by leaving the Jericho Program and not turning himself in to probation afterwards. The court then terminated his PRCS in the two unrelated cases. In case Nos. F15902655 and F15902931, the court sentenced Perez to an aggregate local term of 10 years consisting of the aggravated term of four years on his receiving a stolen vehicle conviction in case No. F15902655, a stayed term on his receiving stolen property conviction in that case, a consecutive one-year term on his receiving a stolen vehicle conviction in case No. F15902931, a stayed term on his unlawfully taking a vehicle conviction in that case and five one-year prior prison term enhancements. The court also ordered Perez to serve the first eight years of his 10-year term in custody and the remaining two years on PRCS.
On July 26, 2016, the court granted Perez's request for a certificate of probable cause based on his assertion that he was denied access to a Spanish-speaking interpreter when he entered his plea in both cases on August 13, 2015. On August 3, 2016, Perez's appeal was filed.
On February 3, 2017, Perez filed a brief contending his August 13, 2015, plea was involuntary and must be vacated because it was induced by improper negotiations that promised leniency in exchange for the plea.
On October 2, 2017, we issued a letter to the parties permitting them to file a letter brief addressing whether this court had jurisdiction to entertain Perez's appeal because the appeal and Perez's compliance with the other procedural requirements discussed below were untimely.
DISCUSSION
Section 1237.5 provides:
"No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court."
California Rules of Court, rule 8.304, in pertinent part, provides:
All further references to rules refer to the California Rules of Court. --------
"(a) Notice of appeal
"(1) To appeal from a judgment or an appealable order of the superior court in a felony case—other than a judgment imposing a sentence
of death—the defendant or the People must file a notice of appeal in that superior court. To appeal after a plea of guilty or nolo contendere or after an admission of probation violation, the defendant must also comply with (b). "[¶] ... [¶]
"(b) Appeal after plea of guilty or nolo contendere or after admission of probation violation
"(1) ... to appeal from a superior court judgment after a plea of guilty or nolo contendere or after an admission of probation violation, the defendant must file in that superior court with the notice of appeal required by (a)—the statement required by Penal Code section 1237.5 for issuance of a certificate of probable cause.
"(2) Within 20 days after the defendant files a statement under (1), the superior court must sign and file either a certificate of probable cause or an order denying the certificate."
Rule 8.308(a) provides:
"Except [in circumstances not present here], a notice of appeal and any statement required by Penal Code section 1237 .5 must be filed within 60 days after the rendition of the judgment or the making of the order being appealed. Except [in circumstances not present here], no court may extend the time to file a notice of appeal." (Italics added.)
In People v. Mendez (1999) 19 Cal.4th 1084, the Supreme Court stated:
"A defendant who has pleaded guilty or nolo contendere to a charge in the superior court, and who seeks to take an appeal from a judgment of conviction entered thereon, may not obtain review of so-called 'certificate' issues, that is, questions going to the legality of the proceedings, including the validity of his plea, unless he has complied with section 1237.5 and ... rule[s] [8.308(a) and 8.304(a)&(b)] ...—which requires him to file in the superior court a statement of certificate grounds as an intended notice of appeal within 60 days after rendition of judgment, and to obtain from the superior court a certificate of probable cause for the appeal within 20 days after filing of the statement and, hence, within a maximum of 80 days after rendition of judgment." (Id. at p. 1088, fns. omitted.)
An order granting probation is considered a final judgment from which an appeal may be taken. (People v. Howard (1997) 16 Cal.4th 1081, 1087.) "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." (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.)
Perez's appeal challenges his original plea in this matter. However, he did not file the instant appeal within 60 days of his original sentencing on September 8, 2015, or timely comply with section 1237.5 or the rules noted above. Thus, this court lacks jurisdiction to consider Perez's challenge to his original plea and we will dismiss his appeal.
DISPOSITION
The appeal is dismissed.