P. v. Neubert

P. v. Neubert

Filed 6/30/08 P. v. Neubert CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, v. LYNWOOD DARIAN NEUBERT, Defendant and Appellant.

A117010 (Marin County Super. Ct. No. SC143247A)

Appellant Lynwood Darian Neubert having failed to secure a certificate of probable cause as required by Penal Code section 1237.5, his appeal is hereby dismissed.

Following advisement and waiver of rights, appellant pled guilty to a violation of Penal Code section 12021.1, subdivision (a) and admitted a prior strike conviction under Penal Code section 1170.12. He was sentenced to the aggravated term of three years, doubled to six in light of the prior conviction.[1]

On appeal, he suggests that his plea and admission were not voluntary and were, in fact, coerced by the presence of his girlfriend as a co-defendant. However, because there is no evidence whatsoever of coercion in the record, appellants actual claim of error is that the trial court failed in its duty to inquire into potential coercion given appellants relationship to his co-defendant.

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 of the Penal Code and the first paragraph of rule 31(d) of the California Rules of Court [now California Rules of Court, rules 8.304(b) & 8.308(a)]─which require 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. (People v. Mendez (1999) 19 Cal.4th 1084, 1088, fn. omitted.)

Our record contains neither a statement of certificate grounds nor a certificate of probable cause. In its brief, respondent raised this deficiency as grounds for dismissal. Appellant filed neither a reply brief nor any documentation in response.

The appeal is dismissed.

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REARDON, J. *

We concur:

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SIMONS, ACTING P. J.

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NEEDHAM, J.

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

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[1] Given the narrow grounds upon which this appeal is resolved, we need not engage in a recitation of the facts of the crime or of the circumstances of the plea agreement.