P. v. Gonzales
Filed 1/24/13 P. v. Gonzales CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
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opinion has not been certified for publication or ordered published for
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
JOSE FRANCISCO GONZALES,
Defendant and
Appellant.
G046828
(Super. Ct.
No. 12NF0323)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Roger B. Robbins, Judge. Affirmed.
Ava R. Stralla, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for
Plaintiff and Respondent.
* *
*
Jose Francisco Gonzales
entered into a plea agreement whereby
he pled guilty to second degree burglary (Pen. Code, §§ 459/4600), fraudulent
use of a credit card (Pen. Code, § 484g, subd. (a)) and
664/487). He was placed on probation for
three years with typical terms and conditions, including incarceration (for
which he was given credit for the time he had already served, and was
released). As part of his plea
agreement, he waived his right to appeal from any legally authorized sentence
the court might impose within the limits of the plea agreement. Nonetheless,
Gonzales timely filed a notice of appeal, challenging both the plea and
admissions and the sentence. He sought a
certificate of probable cause pursuant
to Penal Code section 1237.5 and was denied.
We appointed
appeal. Appellate counsel considered
several possible appellate arguments, but could not make any of them fly. She therefore filed with this court a
(1967) 386 U.S.
738, by setting forth the procedural facts of the case (there was no record of
the actual incidents that led to Gonzales’ prosecution) and the possible
arguments she had investigated and abandoned.
We have reviewed the points she considered and examined the record for
others. We find ourselves in agreement
with her that there is no arguable issue on appeal.
Defendant having pled
guilty, counsel’s review concentrated on putative errors in the plea and
sentencing process. This went nowhere
because no certificate of probable cause had been obtained. Appellant has not suggested, his attorney
could not conceive of, and we cannot imagine a way around that requirement on
the facts of this case. “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 – 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.†(
Cal.4th 1084, 1088, fns. omitted.)
Appellant having failed to do so – and in our opinion, being unable to
do so, there being no grounds therefore – he is precluded from such a challenge
and appellate counsel correctly abandoned that as a ground of appeal.
In fact, without a
certificate of probable cause, appellant may obtain review solely of so-called
“noncertificate†issues. These are
“postplea questions not challenging his plea’s validity and/or questions
involving a search or seizure whose lawfulness was contested pursuant to [Penal
Code] section 1538.5.†(
p. 1088.)
This is not a
meaningless formality. The certificate
of probable cause is designed for situations in which valid, contestable legal
issues exist but a party, for whatever reason, wishes to plead guilty – often
to take advantage of a lenient sentence such as the one appellant
received. To distinguish those cases
from ones in which there is no serious legal issue, we require the trial courts
to screen such requests through the certificate process. The trial court, having been there when the
plea was entered, is well situated to evaluate the bona fides of issues that
might be raised and avoid drains upon the public fisc in pursuit of quixotic
arguments.
In his request for a
certificate of probable cause, Gonzales asserted inadequate assistance of
counsel. He says his plea has led to
removal proceedings by Immigration and Customs officials, even though he was in
this country legally and had never previously been in trouble. He asserts that when he inquired of his
attorney about the immigration consequences of his plea, the attorney told him
he did not know what they would be. This is, of course, an issue for which there
is no appellate record. It is one that,
on the facts alleged by Gonzales –
compared to the record before this court – could only be raised via writ
of habeas corpus, which would allow the development of the facts asserted by
Gonzales in his request for a certificate of probable cause.
Complaints such as this
require a showing most clearly set forth in In
re Resendiz (2001) 25 Cal.4th 230.
In Resendiz, the defendant, a
legal resident, was arrested on drug charges.
He was given the statutory advisement regarding the immigration
consequences of pleading guilty – as was Gonzales. He was subsequently detained by immigration
authorities and threatened with deportation – as was Gonzales. He then moved to withdraw his guilty plea,
saying his lawyer told him he would go to jail for a much longer time if he did
not plead guilty, and he would not have so pleaded if he had known he could be
deported as a result – an argument indistinguishable from Gonzales’.
The Supreme Court held a
valid claim for ineffective assistance of counsel could arise from incorrect
immigration advice, but pointed out it was the defendant’s burden to show
prejudice. “[Defendant’s] assertion he
would not have pled guilty if given competent advice ‘must be corroborated
independently by objective evidence.’
[Citations.] ‘In determining
whether a defendant, with effective assistance, would have accepted [or
rejected a plea] offer, pertinent factors to be considered include: whether counsel actually and accurately
communicated the offer to the defendant; the advice, if any, given by counsel;
the disparity between the terms of the proposed plea bargain and the probable
consequences of proceeding to trial, as viewed at the time of the offer, and
whether the defendant indicated he or she was amenable to negotiating a plea
bargain.’ [Citation.]†(In re
Resendiz, supra, 25 Cal.4th at p. 253.)
It is clear from Resendiz that
complaints such as the one set forth in Gonzales’ request for a certificate of
probable cause require considerably more development of a record than presents
itself in this appeal – or indeed in most appeals.
So appellate counsel was
correct that there are no arguable issues presentable on appeal in this case.
rests within the sound discretion of the trial court, and we see nothing to
indicate the trial court abused that discretion in this case. There was obviously no record on which to
hang an inadequate assistance of counsel claim, and Gonzales presented no other
reason for his request.
The judgment is
affirmed.
BEDSWORTH,
ACTING P. J.
WE CONCUR:
FYBEL, J.
THOMPSON, J.
name="_ftn1" title=""> [1] We notified appellant of the
filing of the Wende brief and invited
him to file his own brief. He did not do
so.
name="_ftn2" title=""> [2] None of the other half-dozen
issues she investigated is arguable, and our own perusal of the record has
suggested none.
