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People v. Ponce

California Court of Appeals, First District, Fifth Division
Jul 29, 2008
No. A116811 (Cal. Ct. App. Jul. 29, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JORGE ENRIQUE PONCE, Defendant and Appellant. A116811 California Court of Appeal, First District, Fifth Division July 29, 2008

NOT TO BE PUBLISHED

Solano County Super. Ct. Nos. FCR 198169 & FCR 221761.

REARDON, J.

Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

On appeal, defendant Jorge Enrique Ponce challenges the denial of his motion to suppress evidence. The Attorney General contends we need not reach the merits of this challenge because defendant Ponce failed to file a proper notice of appeal. We agree and will dismiss the appeal.

Facts

In 2004, defendant was charged by information with various offenses alleged to have occurred between 2002 and 2004. This information consolidated charges from three different cases. Case No. 198169 was designated the lead case, and we, hereafter, refer to this consolidated matter by that number. Defendant pled no contest to several counts, waived his right to appeal and, on February 8, 2005, was sentenced to five years in prison.

The other two cases consolidated in the matter were Nos.208414 and 214036.

On February 4, 2005, in case No. 221761, defendant was charged with various new offenses, alleged to have occurred on January 31, 2005, and with having been out of custody on bail in the consolidated matter (No. 198169) at the time of the new offenses.

At a preliminary hearing in case No. 221761, defendant made a motion to suppress evidence. The motion was denied, and he was held to answer on all counts. Thereafter, an information was filed. Defendant moved unsuccessfully to set aside the information, under Penal Code section 995, alleging his motion to suppress had been denied in error.

On February 5, 2007, defendant pled no contest to an amended charge of simple possession of methamphetamine, with the understanding that he would receive an eight-month prison sentence (one-third the midterm of two years) consecutive to the five-year term he had previously been sentenced to in case No. 198169. He specifically reserved his right to appeal the denial of his suppression motion. The superior court issued a single abstract of judgment, bearing both case numbers (No. 198169 and No. 221761) and reflecting the sentence of five years and eight months.

Defendant timely filed a notice of appeal, listing only case No. 221761 and appealing “from the RULINGS, FINDINGS, ORDERS and JUDGMENT and SENTENCE of this Court entered during the proceedings herein and/or on February 5, 2007.” By letter, we clarified with defendant his desire to appeal from both case numbers referenced in the abstract of judgment. On March 26, 2007, we issued an order amending the notice of appeal to reflect case No. 198169 as well.

Analysis

“[A] defendant seeking appellate review following a plea of guilty or no contest must fully and timely comply with both [Penal Code] section 1237.5 and [California Rules of Court,] rule 31(d). . . . When a defendant has failed to comply with the requirements of section 1237.5 and rule 31(d), the Court of Appeal ‘generally may not proceed to the merits of the appeal, but must order dismissal . . . .’ [Citations.] ” (In re Chavez (2003) 30 Cal.4th 643, 651, italics in original.)

Penal Code section 1237.5 provides, in relevant part: “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . . 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.” Here, Ponce did not file with the trial court a statement in compliance with subdivision (a), and no certificate of probable cause was issued by the trial court in compliance with subdivision (b).

California Rules of Court, rule 8.304, subdivision (a) requires a defendant in a felony case to file a notice of appeal in the superior court, and if the appeal is from a plea of guilty or nolo contendere, the defendant must also comply with subdivision (b) of that rule. Subdivision (b)(1) of rule 8.304 requires the defendant to file, along with the notice of appeal, the statement required by Penal Code section 1237.5 for issuance of a certificate of probable cause. However, the requirement of subdivision (b)(1) does not apply when “the notice of appeal states that the appeal is based on: (A) The denial of a motion to suppress evidence under Penal Code section 1538.5; or (B) Grounds that arose after entry of the plea and do not affect the plea’s validity.” (Rule 8.304(b)(4), italics added.)

Rule 8.304 represents the recodification of former rule 31 following the reorganization of the California Rules of Court, effective January 1, 2007. (See Historical Notes, 23 West’s Ann. Cal. Codes, pt. 3 (2006 ed.) Cal. Rules of Court, rule 8.304, p. 153.) All further references to rules are to the California Rules of Court.

Despite the broad language of Penal Code section 1237.5 requiring a certificate of probable cause in all cases, that section has been held not to apply in either of the circumstances found in rule 8.304(b)(4). However, in those circumstances, “the notice of appeal must state it is based upon such a ground in order to render the appeal operative.” (In re Chavez, supra, 30 Cal.4th at pp. 650-651, fn. 3.)

Given defendant Ponce’s failure to comply with Penal Code section 1237.5, his appeal can be operative only if the notice of appeal conforms to one of the exceptions found in rule 8.304(b)(4), i.e., the notice states that the appeal is based upon the denial of a motion to suppress evidence or the notice states that the appeal is based on grounds that arose after entry of the plea and do not affect the plea’s validity. Defendant Ponce’s notice of appeal states neither. Again, the notice states only that the appeal is “from the RULINGS, FINDINGS, ORDERS and JUDGMENT and SENTENCE of this Court entered during the proceedings herein and/or on February 5, 2007.”

In the context of a plea bargain, defendant Ponce’s notice of appeal fails to state that he is appealing on a ground that arose after the plea and which does not affect the validity of the plea. The use of the word “SENTENCE” in the notice will not alone suffice to justify failure to obtain a certificate of probable cause where the sentence was an agreed-upon term of the plea bargain. (See People v. Panizzon (1996) 13 Cal.4th 68, 89.) Moreover, defendant Ponce does not contend that he is appealing from the sentence. In both his opening brief on appeal and his reply brief, in response to the Attorney General’s claim that the notice of appeal is deficient, defendant Ponce mentions only the denial of his motion to suppress evidence.

Defendant Ponce argues that the notice was adequate because it specifically refers to the rulings, findings and orders of February 5, 2007. On that date, he changed his plea to no contest and specifically reserved his right to appeal the denial of the motion to suppress. The trial court understood this reservation of right as part of the plea agreement. Defendant Ponce states: “The reservation of the right to appeal the denial of the Penal Code section 1538.5/995 motion was therefore an explicit order of the court on February 5, 2007, because it was part of the plea agreement and the court’s order accepting the entire plea agreement.” Defendant Ponce contends it is this “order”—the court’s approval of the plea agreement with the reservation of a right to appeal the denial of the suppression motion—that is the order identified in the notice of appeal. However, even if we accept the characterization of the court’s approval of the plea bargain as an order, defendant Ponce is not contending that order was in error, i.e., he is not in fact appealing from that order. Indeed, it is that order that he is now attempting to avail himself of—the reservation of a right to appeal the denial of the motion to suppress.

Rule 8.304(a)(4) provides: “The notice of appeal must be liberally construed. Except as provided in (b), the notice is sufficient if it identifies the particular judgment or order being appealed.” Subsection (b) of rule 8.304 pertains to appeals after pleas of guilty or no contest. Thus, rule 8.304 contemplates the distinction between appeals after trial and appeals from pleas. The former have fewer procedural prerequisites, and their notices are to be liberally construed. The latter are more procedurally fraught and their notices less liberally construed: “Because the special procedures applicable in the case of an appeal from a judgment of conviction following a plea of guilty or no contest are intended to promote judicial economy by screening out wholly frivolous appeals prior to the commitment of economic and legal resources to such matter [citations], such an appeal should be accorded less leniency than other appeals, rather than more, when we consider possible exemption from a procedural requirement.” (In re Chavez, supra, 30 Cal.4th at p. 653.)

We agree with the Attorney General that the notice of appeal is deficient and, therefore, the appeal is inoperative. The Attorney General also requests that we vacate our order of March 26, 2007, amending the notice of appeal to include case No. 198169. Defendant waived his right to appeal in that matter. Here, defendant does not challenge the aggregate sentence imposed in the two cases. On reflection, we agree with the Attorney General and see no reason for the notice of appeal to have included case No. 198169.

Our order of March 26, 2007, amending the notice of appeal is vacated. The appeal, as originally noticed, is dismissed.

We concur: JONES, P. J. NEEDHAM, J.


Summaries of

People v. Ponce

California Court of Appeals, First District, Fifth Division
Jul 29, 2008
No. A116811 (Cal. Ct. App. Jul. 29, 2008)
Case details for

People v. Ponce

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JORGE ENRIQUE PONCE, Defendant…

Court:California Court of Appeals, First District, Fifth Division

Date published: Jul 29, 2008

Citations

No. A116811 (Cal. Ct. App. Jul. 29, 2008)