P. v. Moye



















Filed 7/2/12 P. v. Moye
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NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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. MALINKA T. MOYE, Defendant and Appellant.

A135521 (>San Francisco> >City> & County Super. Ct. No. 201820)

Defendant Malinka T. Moye
(appellant) appeals, in propria persona,
the sentence imposed following his plea of no contest. Since appellant failed to file a timely
notice of appeal from the sentencing order, his appeal is dismissed. (Cal.
Rules of Court, rule 8.104(b).)href="#_ftn1" name="_ftnref1" title="">[1]

BACKGROUND

On July 6, 2007, pursuant to a negotiated
disposition, appellant pled no contest to misdemeanor vandalism (Pen. Code,
§ 594, subd. (b)(2)) and the remaining charges, including several
felonies, were dismissed. That same day,
he was sentenced to probation. Almost
three years later, on May 4, 2010, appellant filed a
notice of appeal, in propria persona, on form CR-134 (new Jan. 1, 2009). His proposed statement on appeal, also filed
on May 4 on form CR-135 (rev. July 1, 2009), states the
following grounds for the appeal:
“criminal proceedings or imprisonment threats & fears thereof,”
“duress of personalty,” “duress of real property,” “rico act,” and “judicial
misconduct.”

On June 12, 2012, pursuant to rule
8.1008, we ordered this case transferred from the Appellate Division of the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San
Francisco City and County Superior Court since it is a “felony case” (rule
8.304) and the Appellate Division lacked jurisdiction to consider the appeal
therefrom. (Pen. Code, §§ 1235,
subd. (b), 1466; People v. Nickerson (2005)
128 Cal.App.4th 33, 36.)

DISCUSSION

“An appeal in a criminal case is
taken by filing a notice of appeal
within 60 days after the rendition of judgment.
[Citation.] ‘[T]he sole required
procedural step of filing a notice of appeal is critical to rendering the
appeal operative following a judgment of conviction. In general, a timely notice of appeal is
“ ‘essential to appellate jurisdiction.’
[Citation.] It largely divests
the superior court of jurisdiction and vests it in the Court of Appeal. [Citation.]
An untimely notice of appeal is ‘wholly ineffectual: The delay cannot be waived, it cannot be
cured by nunc pro tunc order, and the appellate court has no power to give
relief, but must dismiss the appeal on motion of a party or on its own
motion.’ [Citation.]” ’ [Citation.]”
(People v. Byron (2009) 170
Cal.App.4th 657, 664-665.)

The record before us reflects that
appellant was sentenced on July 6, 2007. Since his appeal was not filed until almost
three years later, it is untimely. We
must, therefore, dismiss the appeal. (Rule 8.104(b); In re Chavez (2003) 30 Cal.4th 643, 650.)

DISPOSITION

The appeal is
dismissed.









SIMONS,
Acting P.J.







We concur.









NEEDHAM, J.









BRUINIERS,
J.