Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. KA077696
THE COURT:Andre Durrell Severe, Jr., (appellant) appeals following his plea of no contest to first degree residential burglary (Pen. Code, § 459) (count 1) and attempted first degree residential burglary (§§ 664/459) (count 2).
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court sentenced appellant to the low term of two years on count 1 and the midterm of two years on count 2, to be served concurrently.
Since appellant pleaded guilty before a preliminary hearing, we glean the facts of his case from the probation report. A sheriff’s deputy observed a male Black approximately 20 years of age knocking on the front door of a residence. The deputy became suspicious because there had been numerous residential burglaries in the neighborhood that month, and the description of the suspect matched the young man knocking at the door. There were no vehicles present at the house, and the prior burglaries had occurred after the homeowners left for work. When no one responded to the individual’s knocking, the deputy made contact with the individual, later identified as appellant. The deputy saw a large bulge in appellant’s pants pocket and patted him down. A pair of gloves fell out of the pocket during the search, and in appellant’s pocket the deputy found what he recognized as burglary tools. Appellant claimed he was knocking on the door because he was looking for a girl he had met a few days earlier who lived on the street. The deputy formed the opinion that appellant was possibly responsible for the rash of burglaries in the neighborhood and arrested him. Appellant later told detectives that he and other individuals would drive to neighborhoods, and he would act as a lookout while the others broke into homes. He insisted he never entered the homes but was paid $100 each time he acted as a lookout.
We appointed counsel to represent appellant on this appeal. After examination of the record, appellant’s counsel filed an “Opening Brief” containing an acknowledgment that he had been unable to find any arguable issues.
On August 31, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider. On October 1, 2007, appellant submitted a letter brief in which he states he is a severe diabetic and his mother has the legal right to make his decisions for him because of this illness. His mother was not allowed to do so (apparently on the day of the plea) because court officers falsely told her appellant was not there “that day.”
Secondly, appellant claims he was not given his proper medicine, and his sugar was extremely high on the day of court. He was not supposed to even be in court that day, but he was taken there because he would have had to be released otherwise.
Lastly, appellant states that when he told his public defender that his sugar was high, his public defender instructed him to sign the court papers, let him do the talking, and say “yes” so that they could finish more quickly and he could get his medicine and feel better. Appellant claims he did not know that he had signed a two-year, two-strike deal until he was able to contact family members, who informed him. Appellant says he is 22 years old and has a long life ahead. Because he had never been to jail or had a record, he feels that two strikes are excessive, and he would like to try to get something less than that, which is the reason for his appeal.
“When a defendant pleads not guilty and is convicted as the result of a trial, in general any issue bearing on the determination of guilt and apparent from the record is cognizable on appeal. [Citation.] By contrast, when a defendant pleads guilty or no contest and is convicted without a trial, only limited issues are cognizable on appeal. A guilty plea admits every element of the charged offense and constitutes a conviction [citations], and consequently issues that concern the determination of guilt or innocence are not cognizable. [Citations.] Instead, appellate review is limited to issues that concern the ‘jurisdiction of the court or the legality of the proceedings, including the constitutional validity of the plea.’ [Citations.]” (In re Chavez (2003) 30 Cal.4th 643, 649, fn. omitted.)
“The right to appeal following a guilty or no contest plea is controlled by section 1237.5.” (People v. McEwan (2007) 147 Cal.App.4th 173, 177.) “The objective is to promote judicial economy ‘by screening out wholly frivolous guilty [and nolo contendere] plea appeals before time and money is spent preparing the record and the briefs for consideration by the reviewing court.’ [Citations.]” (People v. Panizzon (1996) 13 Cal.4th 68, 75–76.)
Pursuant to section 1237.5, a defendant may not appeal from a judgment of conviction entered upon a plea of guilty or no contest, unless: “(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 [and] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.” Pursuant to California Rules of Court, rule 8.304(b), the defendant must file a notice of appeal and the statement required by section 1237.5 for issuance of a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b)(1).) The trial court then has 20 days to sign and file either a certificate of probable cause or an order denying the certificate. (Cal. Rules of Court, rule 8.304(b)(2).) If the defendant does not file the statement required by section 1237.5 or the superior court denies a certificate of probable cause, the superior court clerk must mark the notice of appeal “‘Inoperative.’” (Cal. Rules of Court, rule 8.304(b)(3).) There is an exception in rule 8.304(b)(4), which provides: “The defendant need not comply with [rule 8.304(b)](1) if 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.” (Cal. Rules of Court, rule 8.304(b)(4).)
In sum, if a defendant fails to obtain a certificate of probable cause or to state in the notice of appeal that the appeal is based on non certificate grounds, the appeal is not operative and is subject to dismissal on respondent’s or the court’s own motion. (People v. Jones (1995) 10 Cal.4th 1102, 1108.) The California Supreme Court has held that “a challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself. Therefore, it [is] incumbent upon defendant to seek and obtain a probable cause certificate in order to attack the sentence on appeal. [Citation.]” (People v. Panizzon, supra, 13 Cal.4th at p. 79.)
Although appellant checked the box on his plea form that stated that his appeal was based on the sentence or other matters occurring after the plea, his contentions on appeal clearly are directed at the validity of his plea. Therefore, appellant was required to request and obtain a certificate of probable cause, which he failed to do. This failure requires dismissal of his appeal.
We have examined the entire record and are satisfied that appellant’s attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)
The appeal is dismissed.