Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR188022
Lambden, J.
Defendant Edwin John Tayag appeals from the judgment below sentencing him to three years in state prison for felony vehicle theft with a prior vehicle theft conviction, after the trial court revoked his probation. Defendant claims the court erred when it denied his motion to withdraw his no contest plea, which he brought more than a year after he entered the plea. We dismiss the appeal because defendant did not obtain a certificate of probable cause, although he was required to do so pursuant to Penal Code section 1237.5. We also reject defendant’s claim that his purported attorney’s failure to obtain this certificate constituted ineffective assistance of counsel.
BACKGROUND
By consolidated information filed in May 2007, the Solano County District Attorney charged defendant with the unlawful driving or taking of a vehicle with a prior conviction for violating Vehicle Code section 10851 (Pen. Code, § 666.5); receiving stolen property, a motor vehicle (§ 496d, subd. (a)); and attempted unlawful driving or taking of a vehicle (Veh. Code, §§ 664, 10851, subd. (a)). It was also alleged pursuant to section 667.5, subdivision (b) that defendant suffered two prior convictions, and served terms as described in section 667.5 for each of these offenses.
All further statutory references cite to the Penal Code unless otherwise indicated.
On the first day of his trial in May 2007, defendant moved for substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). During the Marsden hearing, defendant also moved to be permitted to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta). The trial court denied the Marsden motion as lacking merit and the Faretta motion as untimely. Defendant subsequently pled no contest to count one. (§ 666.5) The court imposed and suspended a three-year state prison sentence, suspended judgment, and placed defendant on three years of formal probation subject to defendant serving one year in county jail. Defendant waived all credits for time served, and the court dismissed the remaining counts.
Nearly one year later, in May 2008, defendant was arrested and charged with battery on a spouse or cohabitant, resisting arrest, and obstructing or delaying an officer in the performance of his duties. In June 2008, the court found defendant violated his probation by obstructing or delaying an officer in the performance of his duties, and scheduled sentencing for a later date.
The court subsequently granted another Marsden motion filed by defendant, this time regarding his recently appointed attorney, in September 2008. The court found the relationship between defendant and his attorney had “eroded” because defendant had sued this attorney after the attorney had refused to move to withdraw defendant’s 2007 no contest plea.
In December 2008, defendant’s new attorney moved pursuant to section 1018 to withdraw defendant’s 2007 no contest plea based on the claim that it was “entered due to mistake, ignorance, inadvertence and duress.” In February 2008, the court denied this motion as untimely because of section 1018’s six-month time limitation for plea withdrawal motions that followed an order granting probation. The court noted that defendant had waited some 20 months to bring his motion, and concluded that the court had “lost its statutory authority [under section 1018] to permit the defendant to withdraw his plea” pursuant to People v. Miranda (2004) 123 Cal.App.4th 1124 (Miranda). The court concluded that it lacked jurisdiction to consider the motion and denied it. It declined to treat defendant’s motion alternatively as a petition for writ of habeas corpus or of coram nobis.
The court revoked defendant’s probation and sentenced him to the previously suspended three-year sentence in state prison, minus 788 days of credits for time served and good conduct. Defendant’s May 2008 misdemeanor battery charge was dismissed.
Defendant filed a timely notice of appeal, but without a certificate of probable cause. Defendant’s notice of appeal stated that he was “without attorney.” Nonetheless, the notice was signed “for defendant” by the last counsel who had represented him before the trial court, Laura M. Petty. Petty indicated on the notice that the appeal followed a guilty or no contest plea and checked the box stating that the appeal was “based on the sentence or other matters occurring after the plea.” She did not check the box stating that the appeal challenged “the validity of the plea or admission, ” which the form indicated would have required the appealing party to request a certificate of probable cause.
DISCUSSION
Defendant argues that the trial court erred by not granting his December 2008 motion to withdraw his 2007 no contest plea, claiming that he entered the plea only after the trial court improperly denied his Marsden and Faretta motions and, furthermore, that the court failed to establish a factual basis for the plea. The People, along with addressing the merits of defendant’s claims, argue that, rather than address these merits, we should dismiss defendant’s appeal because defendant has not obtained a certificate of probable cause as required by section 1237.5. We agree with the People.
Defendant also argues that, should we dismiss his appeal, we nonetheless should grant his ineffective assistance of counsel claim regarding Petty. We deny this request. Defendant’s conclusory and unsupported arguments constitute a waiver of this claim. Also, as the People argue, Petty’s failure to obtain a certificate of probable cause was not prejudicial to defendant in light of the trial court’s proper reliance on Miranda, supra, 123 Cal.App.4th 1124, to deny defendant’s plea withdrawal motion.
We note the unusual nature of defendant’s ineffective assistance of counsel claim, which raises an issue about conduct related to this very appeal that causes us to dismiss it. The People do not challenge defendant’s ineffective assistance of counsel claim on any procedural grounds, however, and so we address it herein.
I. Certificate of Probable Cause
Section 1237.5 provides that “[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere” except where the defendant files 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 proceedings, ” and the trial court issues a certificate of probable cause for the appeal. (§ 1237.5.) California Rules of Court, rule 8.304 implements the written statement and certificate requirement of section 1237.5, stating that the failure to obtain a certificate of probable cause following a no contest plea renders the appeal “ ‘Inoperative.’ ” (Cal. Rules of Court, rule 8.304(b)(3).)
Our Supreme Court has held that “[a] defendant who has pleaded... 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 [the relevant provision] of the California Rules of Court. (People v. Mendez (1999) 19 Cal.4th 1084, 1088, italics added, fn. omitted.) We are required to enforce the requirement of a certificate of probable cause in a “strict manner” to promote the goal of judicial economy. (Id. at p. 1099.) Hence where a certificate is required but has not been obtained, we “may not proceed to the merits of the appeal, but must order dismissal thereof.” (Id.at p. 1096.)
A certificate of probable cause is not required when an appeal is based on the denial of a motion to suppress evidence or on post-plea grounds that do not affect the plea’s validity. (Cal. Rules of Court, rule 8.304(b)(4).) However, the crucial inquiry is the “substance of the error being challenged, not the time at which the hearing was conducted.” (People v. Ribero (1971) 4 Cal.3d 55, 63 [certificate of probable cause is required where defendant appeals from trial court’s denial of a plea withdrawal motion], quoted in People v. Johnson (2009) 47 Cal.4th 668, 679, 682 [certificate is required for an appeal “whose purpose is, ultimately, to invalidate a plea of guilty or no contest”], followed in People v. Brown (2010) 181 Cal.App.4th 356, 361.) A defendant “cannot avoid the requirements of section 1237.5 by labelling the denial of the motion as an error in a proceeding subsequent to the plea.” (Ribero, at pp. 63-64.) Thus, if a “challenge to the sentence is in substance a challenge to the validity of the plea, ” the appeal is “subject to the requirements of section 1237.5.” (People v. Panizzon (1996) 13 Cal.4th 68, 76.)
Neither exception to the certificate requirement applies here. Defendant, other than his ineffective assistance of counsel claim regarding Petty, concedes that his appeal addresses the trial court’s denial of his motion to withdraw his 2007 no contest plea. In this motion below, defendant unquestionably and directly challenged the validity of his no contest plea, claiming that he entered it “due to mistake, ignorance, inadvertence and duress” because of the court’s denial of his Marsden and Faretta motions. (See, e.g., People v. Panizzon, supra, 13 Cal.4th at p. 76 [noting that “a certificate must be obtained when a defendant claims that a plea was induced by misrepresentations of a fundamental nature” or when “warnings regarding the effect of a guilty plea on the right to appeal were inadequate”].) Therefore, it is no matter when the hearing on his motion occurred below or that his notice of appeal stated that the appeal was based on matters subsequent to his plea. Defendant was required to obtain a certificate of probable cause and, having failed to do so, we must dismiss his appeal. (§ 1237.5; Cal. Rules of Court, rule 8.304(b); People v. Mendez, supra, 19 Cal.4that p. 1096.)
II. Ineffective Assistance of Counsel
Defendant also argues that, if we conclude that he was required to obtain a certificate of probable cause, we should nonetheless find that Petty’s failure to request one constituted ineffective assistance of counsel. Defendant has waived this claim by making conclusory and incomplete arguments and, in any event, he fails to demonstrate that Petty’s failure to request the certificate was prejudicial to him.
A. Waiver
In order to establish a claim of ineffective assistance of counsel on a direct appeal, a “defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it ‘fell below an objective standard of reasonableness [¶]... under prevailing professional norms.’ [Citation.] Unless a defendant establishes the contrary, we shall presume that ‘counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.] If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged, ’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 745-746.)
Generally, defendant must “affirmatively demonstrate error through reasoned argument, citation to the appellate record, and discussion of legal authority.” (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685 [rejecting appellant’s proposed jury instruction for failing to sufficiently discuss it or explain why it was proper].) “ ‘Conclusory allegations made without any explanation of the basis for the allegations do not warrant relief....’ ” (People v. Cooper (1992) 7 Cal.App.4th 593, 597 [regarding conclusory allegations made in a habeas corpus proceeding].)
Although the People do not raise the issue, we note that defendant’s claim is a “general assertion, unsupported by specific argument.” (People v. Stanley (1995)10 Cal.4th 764, 793.) He cites some legal authority which generally discusses the law of ineffective assistance of counsel. However he does not explain the relevance of this authority to his particular circumstances, or provide any substantial analysis.
Among other things, defendant does not address what prejudice was caused by Petty’s purported error, assuming, contrary to the face of the notice of appeal, that she represented him when she executed it on his behalf. Defendant merely cites Roe v. Flores-Ortega, (2000) 528 U.S. 470, 482-483 for the proposition that when “a counsel’s acts result in the forfeiture of an entire proceeding like an appeal, there is a presumption of prejudice.” We are not required to consider alleged errors when “the relevance of the cited authority is not discussed.” (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
Furthermore, defendant virtually ignores the central prejudice issue: whether Miranda, supra, 123 Cal.App.4th 1124 applies to his case, as the trial court found. Defendant argues only that “this court is not bound by Miranda, and may... determine that the trial court had jurisdiction to hear [defendant’s motion].” Defendant apparently assumes that, rather than doing so himself, “this court will construct a theory supportive of his [claim].” (People v. Stanley, supra, 10 Cal.4th at p. 793.) This is not our role.
In short, defendant’s conclusory arguments, and his failure to meaningfully address all the elements of an ineffective assistance of counsel claim, constitute a waiver of the claim itself.
B. No Prejudice
Even if defendant had addressed the purported prejudice caused by Petty’s purported error, his ineffective assistance of counsel claim nonetheless would lack merit because, as the People argue, the trial court correctly determined that it lacked jurisdiction to consider his plea withdrawal motion.
Section 1018 provides in relevant part: “On application of the defendant at any time before judgment or within six months after an order granting probation is made if the entry of judgment is suspended, the court may... permit the plea of guilty to be withdrawn and a plea of not guilty substituted.” (§ 1018, italics added.)
The Miranda court thoroughly examined the legislative history of section 1018 and determined that the Legislature intended to impose a mandatory, rather than merely a directory, limitation of six months for plea withdrawal motions following a grant of probation. (Miranda, supra, 123 Cal.App.4th at pp. 1130-1133.) The court noted that, “[i]f a procedural requirement is mandatory, the failure to comply with the requirement invalidates the action.” (Id. at p. 1130.) After reviewing the legislative history, the court determined that the six-month time limit was intended “to protect the People’s ability to prosecute cases by limiting the ability of a defendant to [withdraw his plea] long after entry of that plea.” (Id. at p. 1133.) The court concluded that “the time limitation must be deemed mandatory. To read the statute otherwise would obviate the purpose” of this time limitation. (Ibid.) We agree with, and adopt, this conclusion.
Here, defendant did not seek to file his motion to withdraw his no contest plea until well more than six months after his grant of probation in May 2007. There is no indication that he took any steps to withdraw his plea until months after his arrest almost a year later, in May 2008. This delay, which defendant does not explain, is the very kind of prejudicial delay that the six-month time limit was designed to prevent. (Miranda, supra, 123 Cal.App.4th at p. 1131.) The trial court properly found that it lacked jurisdiction to consider defendant’s withdrawal motion. Defendant cannot prove he was prejudiced by Petty’s failure to obtain a certificate of probable cause because his appeal is meritless.
Finally, we need not address defendant’s claim that the trial court erred in refusing to treat his plea withdrawal motion as a petition for writ of habeas corpus or of coram nobis. Defendant has waived the claim, not only because of its conclusory nature, but because he first raises it in his reply brief without explanation. (See, e.g., Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4 [refusing to advance an argument first raised in a reply brief, without a showing of good reason for doing so].)
DISPOSITION
The appeal from the court’s judgment is dismissed. Defendant’s ineffective assistance of counsel claim is denied.
We concur: Kline, P.J.Haerle, J.