P. v. Phillips

Filed 1/22/10 P. v. Phillips CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Colin J. Bilash, Judge. Dismissed.

Neil F. Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr. and Angela Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.

On September 2, 2008, defendant and appellant Antonio Don Phillips entered into a plea agreement in which he pled guilty to one count of possession of cocaine base for sale. (Health & Saf. Code,  11351.5, count 1.) Pursuant to the plea agreement, one count of offering to sell cocaine base (Health & Saf. Code,  11352, subd. (a), count 2) was dismissed, as well as allegations of a prior strike conviction (Pen. Code,  667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior prison conviction (Pen. Code,  667.5, subd. (b)). The court informed defendant it was going to sentence him to the low term of three years, and then released him on a Cruz^[1]waiver pending his sentencing hearing. Defendant appeared for sentencing on October 24, 2008, and requested a continuance, which the court granted. On November 21, 2008, he appeared for sentencing and requested another continuance, but the court denied this request. He immediately moved to withdraw his plea. The court summarily denied his request and imposed the three-year state prison term. On appeal, defendant contends the trial court abused its discretion in failing to allow him to state a basis for his motion to withdraw his guilty plea. Because defendant did not obtain a certificate of probable cause (Pen. Code,  1237.5), we shall dismiss the appeal.

FACTUAL BACKGROUND

On May 7, 2005, Officer Travis Walker observed defendant leaning into the drivers side of a car and talking to the female driver. Defendant appeared to make a hand-to-hand narcotics transaction. Upon later searching the car, five packaged bags of cocaine base were found on the rear floorboard behind the drivers seat. After being arrested, defendant admitted to Officer Walker that he had sold the driver cocaine base.

ANALYSIS

Defendant Failed to Obtain a Certificate of Probable Cause

Defendant claims the trial court abused its discretion in denying his motion to withdraw his guilty plea without allowing him to state the basis for the motion. This claim should be dismissed because defendant failed to obtain a certificate of probable cause.

A. Background

On September 2, 2008, defendant pled guilty to possession of cocaine base for sale and acknowledged that the court would sentence him to the low term of three years in state prison. The court released him on his own recognizance pending imposition of sentence on October 24, 2008.

On October 24, 2008, defendant requested that the sentencing be continued so that he could take care of family matters. The court granted his request and continued the matter to November 21, 2008.

On November 21, 2008, defendant requested another continuance. This time, he requested a continuance because he wanted to stay out until after the holidays. The court denied the request. The following discussion occurred immediately after the denial:

[DEFENSE COUNSEL]: May I have a second, your Honor? [] Its my understanding that [defendant] wants to withdraw his plea.

THE COURT: Not going to do it. [] Waive arraignment for sentencing?

[DEFENSE COUNSEL]: Well, yes, but he wants to withdraw his plea. [] Other than the fact that [defendant] wants to withdraw his plea, its not a legal cause not to sentence somebody. [] I submit.

The People then submitted, and the court asked defendant if he wanted to say anything. Defendant started to say, I was just telling him about The court interjected, Is there anything you want to say to me before I sentence you? Defendant said, No. The court then explained to defendant that he had been out on a Cruz waiver for two months, and it was time to sentence him. The court said defendants motion to withdraw his guilty plea was not timely or appropriate. Defendant agreed. The court sentenced him pursuant to the terms of the plea agreement.

B. Defendant Is, in Substance, Challenging the Validity of the Plea

Defendant is not purporting to challenge the denial of his motion to withdraw his plea. Rather, he is challenging the fact that [he] was never even able to state the basis of his motion or to provide evidence supporting it . . . . He asserts that the matter should be remanded and that he should be permitted to include [an attack] on the validity of the plea. Defendant reasons that he was not required to obtain a certificate of probable cause before filing this appeal because the trial court error he challenges occurred after his guilty plea and does not attack the validity of the plea. The People argue we should dismiss the appeal because defendant failed to obtain a certificate of probable cause. We agree with the People.

Penal Code section 1237.5 provides: No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . . except where both of the following are met: [] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court. The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas. [Citations.] (People v. Panizzon (1996) 13 Cal.4th 68, 75.) Notwithstanding the broad language of [Penal Code] section 1237.5, it is settled that two types of issues may be raised in a guilty or nolo contendere plea appeal without issuance of a certificate: (1) search and seizure issues for which an appeal is provided under [Penal Code] section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. [Citations.] (Id. at pp. 74-75.)

In determining whether an appeal is cognizable without a certificate of probable cause, the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made. [Citation.] [Citation.] If the challenge is in substance an attack on the validity of the plea, defendant must obtain a certificate of probable cause. [Citation.] (People v. Emery (2006) 140 Cal.App.4th 560, 564-565.)

It is apparent that every motion to withdraw a guilty plea will occur subsequent to the plea itself, but the time of the motion is not the determinative factor: not every appeal from the denial of such a motion is cognizable without regard to [Penal Code] section 1237.5. [Penal Code] [s]ection 1018 provides the authority for a motion to withdraw a guilty plea. That section vests in the trial court the discretion to permit withdrawal of a guilty plea for a good cause shown anytime before judgment is entered. (People v. Osorio (1987) 194 Cal.App.3d 183, 187.) To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.] Other factors overcoming defendants free judgment include inadvertence, fraud or duress. [Citations.] However, [a] plea may not be withdrawn simply because the defendant has changed his mind. [Citations.] (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)

Here, defendant did not file a motion to withdraw his plea, but orally moved to withdraw his plea immediately after the court denied his request for another continuance. Defense counsel expressed that defendant wanted to withdraw his plea, but failed to state any good cause for withdrawing the plea. (Pen. Code,  1018.) The court denied his motion. It is clear that the court interpreted defendants motion as an attempt to delay sentencing further since the court had just denied his request for a continuance. The court explained that it had already released him on a Cruz waiver for over two months, and that it was time to sentence him.

The basis for the appeal here is essentially that the court did not allow defendant to state the basis for his motion to withdraw his plea before denying the motion. Since the validity of that claim of error is dependent upon the validity of the guilty plea, defendant is, in substance, challenging the validity of his plea. Thus, he should have obtained a certificate of probable cause before filing this appeal. (See People v. Panizzon, supra, 13 Cal.4th at p. 76; see also People v. Emery, supra, 140 Cal.App.4th at p. 565.)

Before dismissing this appeal, we pause to note that even if defendant had obtained a certificate of probable cause, his claim of error would fail on the merits because the trial court did not abuse its discretion in denying his motion to withdraw. It is apparent that defendant had an opportunity to express a basis for his motion to withdraw when his counsel initially moved to withdraw his plea. Defendant failed to offer any justification for withdrawal of his guilty plea, and fails to offer any on appeal.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

GAUT

J.

KING

J.

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^[1]People v. Cruz (1988) 44 Cal.3d 1247 (Cruz).