Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA076811. John T. Doyle, Judge.
Christine C. Shaver, 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, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, and Tasha G. Timbadia, Deputy Attorney General, for Plaintiff and Respondent.
COOPER, P. J.
Gabino Sandoval appeals from the judgment entered on his plea of no contest to one count of second degree murder and one count of attempted willful, deliberate, and premeditated murder. He was sentenced to concurrent terms of 15 years to life and life with possibility of parole. Appellant contends that the court improperly denied his motion to set aside his plea, on grounds it was rendered under duress. Because this contention requires a certificate of probable cause, which appellant did not seek or obtain, the appeal must be dismissed.
FACTS
In view of the issues presented, it is unnecessary to state at length the facts of the offenses, as reflected by the preliminary hearing. It will suffice to observe that appellant was charged with fatally shooting a mother and wounding her son, under the misconception that their car carried rival gang members.
The information charged appellant with the two counts that he later admitted, except that the murder was charged as being in the first degree, and each count also alleged enhancements for use and discharge of a firearm (Pen. Code, § 12022.53; undesignated section references are to that code), and for commission of the offenses in association with a criminal street gang (§186.22. subd. (b)).
The court denied appellant’s motion under section 1538.5 to suppress evidence seized pursuant to a search warrant, including an automatic rifle identified as the murder weapon. On the day set for trial, appellant and the prosecutor agreed that appellant would plead guilty or no contest, and would receive a 15-years-to-life sentence for the murder, and a concurrent life sentence for the attempt, both without enhancements.
After appellant waived his constitutional rights, but before the plea was taken, appellant’s counsel stated that legally the plea would not constitute a waiver of appellant’s right to appeal the search and seizure issues. (See Cal. Rules of Court (hereafter rules), former rule 30(b)(4)(A).) The prosecutor then stated that although he had not discussed the matter with counsel, the offer was contingent on appellant’s giving up all appellate rights.
After the court ruled that the prosecutor was entitled to change the terms of the offer because no new plea had been entered, the prosecutor inquired whether appellant was willing to waive his appellate rights. The court stated to appellant’s counsel, “. . . I’m ready to proceed. Your client is going to have to make that decision at this point.” After conferring with counsel, appellant expressed his agreement, and that he was willing to accept the indicated sentence on the terms offered, under a no contest plea. He then entered that plea.
Represented by new counsel, appellant filed a motion to withdraw the plea (§ 1018). He urged that it was the product of ineffective assistance of counsel, who had misrepresented that the sentence would be for 15 years, and also that appellant had not been given enough time to assess the change of terms involving appellate rights. In his declaration, appellant said that when explaining the original plea offer, his previous lawyer had told him he would be able to appeal. The prosecutor filed opposition to the motion, urging that appellant had been repeatedly apprised of the actual proposed sentence during the plea proceedings, and that the same was true of the appellate waiver. The prosecutor stated that a negotiated disposition in the case had long been discussed.
At the hearing, appellant waived attorney-client privilege, to allow his prior counsel to testify. Called by the prosecutor, counsel stated that appellant had been reluctant to accept 15 years to life and had wanted a determinate sentence of 15 years. But the prosecutor would not offer a determinate sentence of less than 40 years, and eventually appellant agreed to the 15-to-life term. With regard to appellate rights, counsel testified he originally had told appellant that he would retain them, but after the prosecutor added the condition of waiver to the offer, appellant had conferred with counsel and accepted.
Counsel further testified that when he explained the options (15 years to life, 40 years, or trial) during a mid-day recess, appellant told him he needed more time to decide. Counsel asked for a continuance for this purpose, the court declined, stating that the case had been set for trial and jury selection that day. Appellant also testified, stating, among other things, that when he told his lawyer he needed more time to decide about the offer, counsel replied that appellant had to respond in five minutes. Counsel had “led” appellant to accept the offer, and if he had had more time he wouldn’t have done so.
The court denied the motion to withdraw the plea, finding that before he pled appellant had been aware of the 15-years-to-life sentence, as well as the waiver of appellate rights, that he had not been subject to duress, and that his counsel had performed diligently.
At sentencing, the court gave the standard admonition of appeal rights, at the prosecutor’s suggestion. Appellant subsequently filed a notice of appeal that stated, “This appeal is based on the sentence or other matters occurring after the plea. (Cal. Rules of Court, rule 30(b)(4)(B).” Attached was a request for a certificate of probable cause, which appellant signed but did not fill out with any reasons. No certificate of probable cause was issued.
DISCUSSION
Appellant contends that he entered his plea under the duress of having to decide quickly about the plea offer with an appellate waiver, and therefore the trial court abused its discretion in denying his motion to withdraw the plea. However, as respondent argues, appellant cannot pursue this contention without a certificate of probable cause, which he did not seek or obtain.
Section 1237.5 provides that no appeal may be taken upon a plea of guilty or no contest unless the defendant has filed with the trial court a statement showing reasonable grounds going to the legality of the proceedings, and the court has “filed a certificate of probable cause for such appeal . . . .” This requirement is qualified by rule 8.304(b) (former rule 30(b) during the proceedings below), which provides that a certificate of probable cause is not required for appeals based either on the denial of a section 1538.5 motion or on grounds that arose after the plea and that do not affect the validity of the plea. (Rule 8.304(b)(4)(A), (B); former rule 30(b)(4)(A), (B).)
Without a certificate of probable cause, appellant’s appeal does not qualify under either the statute or the rule. Although appellant’s notice of appeal sought to comply with former rule 30(b)(4)(B), by stating that the grounds of the appeal arose after the plea, that statement omitted the critical concluding language, that the grounds “do not affect the plea’s validity.” (Ibid.; see also rule 8.304(b)(5).) And both the appeal and the motion to withdraw the plea on which it is based challenged the validity of appellant’s plea. The appeal therefore required a certificate of probable cause in order to proceed. (People v. Panizzon (1996) 13 Cal.4th 68, 76; People v. Ribero (1971) 4 Cal.3d 55, 62-64.) Absent one, the appeal must be dismissed.
DISPOSITION
The appeal is dismissed.
We concur: RUBIN, J., EGERTON, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.