P. v. Paleologus

Filed 10/26/07 P. v. Paleologus CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Perry, Judge. Dismissed.

Donna L. Harris, 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, Victoria B. Wilson and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant, Victor L. Paleologus, purports to appeal after he pled guilty to first degree murder. (Pen. Code[1], 187.) We noted that defendant had waived his right to appeal as part of a plea bargain whereby the prosecution, in the midst of a capital trial, moved to dismiss: a count of identity theft in violation of section 530.5, subdivision (a); a count of preparing a false financial statement ( 532, subd. (a)); a count of burglary ( 459); a count of grand theft of an automobile ( 487, subd. (d)(1)); a count of forgery ( 475, subd. (b)); a count of receiving stolen property; an allegation he had served 6 prior prison terms; an allegation he had twice been convicted of violent or serious felonies ( 667, subd. (b)-(i), 1170.12); and two special circumstance allegations. ( 190.2, subds. (a)(15) & (17).) We have a duty to raise issues concerning our own jurisdiction on our own motion. (Jenningsv. Marralle (1994) 8 Cal.4th 121, 126; Olsonv. Cory (1983) 35 Cal.3d 390, 398.) We issued an order to show cause and set the dismissal issue for oral argument.

Near the end of trial, counsel advised the trial court about a potential settlement which included a waiver by defendant of the right to appeal. During the discussion of the plea bargain, defense counsel indicated that part of the agreement required defendant to give up his right to appeal. While discussing the proposed waiver of rights that would be presented to defendant, the trial court stated to both defense attorneys in chambers: Okay Mr. Paleologus, this is a plea to first-degree murder, you know, and I would take him through the voluntariness that he takes it he wants it, he is waiving his appeal rights, he is waiving his right to a probation report. He wants the 25 years to life. One of defendants lawyers then indicated that defendant would be parole eligible and there would be a glimmer of hope in the future. The bulk of the chambers discussion involved the issue of whether defendant would admit culpability in the killing of the victim, Kristine Johnson; that is whether there was a factual basis for the guilty plea. But one of defendants attorneys then stated, Hes saying hell take the deal. There was further discussion concerning the chances defendant would use a habeas corpus petition to challenge the validity of his plea.

In the courtroom, defendant discussed his willingness to accept responsibility for Ms. Johnsons death as part of the resolution of the case. The trial court explained the desire of Ms. Johnsons family to bring final closure and defendant responded, I can appreciate that, you honor. During the taking of the plea, the following transpired: THE COURT: . . . Now Mr. Paleologus, have you discussed this proposed disposition with your attorney? [] THE DEFENDANT: Yes, I have, your honor. Shortly the following occurred: THE COURT: Youve had a chance to talk over this plea disposition with Mr. Flier; is that correct? [] THE DEFENDANT: Yes, your honor. [] THE COURT: And are you comfortable with Mr. Fliers representation of you in this matter? [] THE DEFENDANT: Yes, I am. After being advised that his plea would possibly result in a greater sentence if he were convicted of another crime in the future, the following occurred: THE COURT: . . . Now as part of the plea here youre giving up your right to appeal. [] Do you understand that this eliminates the opportunity to appeal any decision this court made regarding the evidentiary rulings and other rulings that the court made? [] Yes, you honor. After defendant pled guilty, the trial court stated, I accept the plea as having been entered freely and voluntarily with a full understanding of the nature and consequences thereof. Upon being sentenced, the trial court did not advise defendant of his appellate rights. Later, the trial court issued a probable cause certificate.

We agree with the Attorney General. Defendant waived his right to appeal as part of the settlement of a pending capital case. (People v. Panizzon (1996) 13 Cal.4th 68, 80; People v. Aparicio (1999) 74 Cal.App.4th 286, 292; see People v. Nguyen (1993) 13 Cal.App.4th 114, 124.) The fact the trial court issued a probable cause certificate does not mitigate defendants waiver of the right to appeal under these facts. Thus, the appeal must be dismissed.

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

ARMSTRONG, J.

KRIEGLER, J.

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[1] All future statutory references are to the Penal Code.