>P. v. Moreno

















Filed 2/27/13 P. v. Moreno CA5









NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT


>

THE PEOPLE, Plaintiff and Respondent, v. JAIME PINEDA MORENO, Defendant and Appellant.

F063711 (Super. Ct. No. 482591-5) >OPINION

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

APPEAL from
an order of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Fresno
County. Houry A. Sanderson, Judge.

Roger K.
Litman, for Defendant and Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jennevee
H. De Guzman, Deputy Attorneys General for Plaintiff and Respondent.

-ooOoo-



Appellant, Jaime Pineda Moreno,
appeals from the trial court’s denial of his petition, pursuant to Penal Code
section 1016.5,href="#_ftn2" name="_ftnref2"
title="">^[1] to vacate his 1993 conviction in case No. 482591-5
for sale of marijuana (Health & Saf. Code, § 11360, subd.
(a)). He contends he was not adequately
advised of the immigration consequences of his plea as required by section
1016.5.href="#_ftn3" name="_ftnref3" title="">^[2] We conclude that a motion to vacate a
judgment for failure to give the section 1016.5 advisements is an attack on the
validity of the plea. As such, an appeal
from the denial of such a motion requires the defendant to obtain a href="http://www.mcmillanlaw.com/">certificate of probable cause from the
trial court in compliance with section 1237.5.
Because appellant did not obtain the requisite certificate of probable
cause, we dismiss the appeal.

name=B00012028178907>PROCEDURAL BACKGROUNDhref="#_ftn4" name="_ftnref4" title="">^[3]

On
March 22, 1993, Moreno pled guilty to sale of marijuana. On July 1, 2011, Moreno filed a section
1016.5 motion to vacate the judgment on the grounds that he had not been
adequately advised of the immigration consequences of his plea. On September 11, 2011, the trial court denied
Moreno’s section 1016.5 motion to vacate the judgment.

On October 27, 2011, Moreno filed a
notice of appeal from the denial of the motion; he did not obtain a certificate
of probable cause.

DISCUSSION

Appellant acknowledges that in >People v. Placencia (2011) 194
Cal.App.4th 489 (Placencia) the court
held that a certificate of probable cause is required for a defendant to appeal
from the denial of a motion to vacate plea brought under section 1016.5,
subdivision (b). (Placencia, at p. 493-494.)
However, he urges this court to conclude that Placencia was erroneously decided.
Respondent cites Placencia to assert the appeal must be
dismissed because appellant failed to obtain a certificate of probable cause
pursuant to section 1237.5. For reasons
to follow, we agree with respondent.

name="SDU_2">Section
1016.5, subdivision (a) requires the trial court, prior to accepting a guilty
plea, to advise the defendant that conviction may have various immigration
consequences, including deportation and exclusion from admission to the United
States. If the trial court fails to so
advise, and the defendant shows the conviction may have the consequence of
deportation or exclusion, or denial of naturalization, “the court, on
defendant’s motion, shall vacate the judgment and permit the defendant to
withdraw the plea of guilty or nolo contendere, and enter a plea of not
guilty.” (§ 1016.5, subd. (b).) In People v. Totari (2002) 28 Cal.4th
876 at page 887, the Supreme Court held that denial of a section 1016.5 motion
to vacate a guilty plea is an appealable order.

Generally, to appeal from a guilty
plea, section 1237.5 requires the defendant to obtain a certificate of probable
cause from the trial court.href="#_ftn5" name="_ftnref5"
title="">^[4]name=F00042028178907> Section 1237.5 “relates to the procedure in
perfecting an appeal from a judgment based on a plea of guilty, and not to the
grounds upon which such an appeal may be taken.” (People v. Ribero (1971) 4 Cal.3d 55,
63, fn. omitted, superseded by statute on another point as stated in In re
Chavez (2003) 30 Cal.4th 643, 656.)
It does not apply to errors that occur after a plea has been
entered. (People v. Johnson
(2009) 47 Cal.4th 668, 678.) However,
“[i]t has long been established that issues going to the validity of a plea
require compliance with section 1237.5.
[Citation.] Thus, for example, a
certificate must be obtained when a defendant claims that a plea was induced by
misrepresentations of a fundamental nature [citation] or that the plea was
entered at a time when the defendant was mentally incompetent [citation]. Similarly, a certificate is required when a
defendant claims that warnings regarding the effect of a guilty plea on the
right to appeal were inadequate.
[Citation.]” (People v.
Panizzon (1996) 13 Cal.4th 68, 76 (Panizzon).) In determining whether section 1237.5
applies, the critical inquiry is whether the issue on appeal is, in substance,
a challenge to the validity of the plea, in which case the requirements of
section 1237.5 must be met. (Panizzon,
at p. 76.)

In
Totari, the defendant obtained a certificate of probable cause before
appealing the denial of his section 1016.5 motion to vacate. (Totari,
supra, 28 Cal.4th at p. 880.) The
Court of Appeal dismissed the appeal on the grounds that the order was
nonappealable. (Ibid.) Our Supreme Court reversed, concluding that
denial of a section 1016.5 motion to vacate was an appealable order. (Totari, at pp. 886–887.) But whether a certificate of probable cause
is required to perfect an appeal from denial of a section 1016.5 motion to
vacate was not at issue in Totari, since the opinion makes clear the
defendant had obtained one. “‘It is
axiomatic that cases are not authority for propositions not considered. [Citation.]’”
(People v. Jennings (2010) 50 Cal.4th 616, 684.) Thus, Totari does not stand for the
proposition that a certificate of probable cause is or is not required to perfect
an appeal from denial of a section 1016.5 motion.

name="sp_999_3">name="citeas((Cite_as:_2012_WL_2829436,_*3_(Ca">Whether compliance with
section 1237.5 is necessary to perfect an appeal from an order denying a
section 1016.5 motion was precisely the issue before the court in Placencia. The Placencia court concluded
compliance was required, reasoning that an appeal from denial of a section
1016.5 motion to vacate is based on the claim that the trial court failed to
give the requisite advisements, “which necessarily precedes the entry
of name="SR;1560">the name="SR;1561">plea name="SR;1562">and name="SR;1563">affects name="SR;1564">the name="SR;1565">validity name="SR;1566">of name="SR;1567">the name="SR;1568">plea.” (Placencia, supra, 194 Cal.App.4th at p. 494.) Requiring compliance does not impede the defendant’s right
to appeal, the court explained, because if the trial court wrongfully refuses
to issue a certificate, the defendant may obtain relief through a writ of
mandate. (Id. at p. 495.)
We find Placencia’s reasoning persuasive and adopt it here. Because appellant did not obtain a
certificate of probable cause, he failed to perfect his appeal.href="#_ftn6" name="_ftnref6" title="">^[5]name=FN5>

name=B00052028178907>DISPOSITION

The appeal is dismissed.