P. v. Dorado
Filed 7/26/12
P. v. Dorado CA2/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 ONE
THE
PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY
DORADO,
Defendant and Appellant.
B229915
(Los Ángeles County
Super. Ct. No. LA061993)
APPEAL from a judgment of the Superior Court of
County, Barry A. Taylor, Judge. (Retired judge of the L.A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, §
6 of the Cal. Const.)
Dismissed.
Mark Yanis, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney
General, James William Bilderback II, Supervising Deputy Attorney General, and
Sonya Roth, Deputy Attorney General, for Plaintiff and Respondent
——————————
Defendant Anthony Dorado appeals from the judgment
entered following his negotiated no contest plea to several offenses. Appellant contends he is entitled to withdraw
his plea because he was inadequately admonished regarding the effect of his
waiver and did not properly waive his constitutional
rights. We dismiss the appeal for
appellant’s failure to secure a certificate of probable cause.
BACKGROUND
Because the appeal involves a question of law, we need
not recite the underlying facts in detail.
In essence, appellant and several members of a street gang were alleged
to have committed a home invasion robbery of several victims at gunpoint.
An information charged appellant with home invasion
robbery, in violation of Penal Code section 211
invasion robbery, in violation of sections 664 and 211 (count 4). It was alleged in counts 1 through 4 that the
offenses were committed for the benefit of a
subd. (b)(4)), and that a principal was armed with and personally used a
shotgun (§ 12022, subds. (a)(1), (b), (e)(1).)
In counts 1 through 4 the information also alleged that appellant
personally used a firearm in the commission of the offenses. (§§ 1203.06, subd. (a)(1), 12022.5,
subd. (a).)
Prior to trial, pursuant to a
pleaded no contest to counts 1 and 2, and pleaded true to the firearm
enhancement as to count 1 (§ 12022.53, subd. (b)). The court found appellant guilty on counts 1
and 2, found the offense in count 1 to be in the first degree, and found the
offense in count 2 to be in the second degree.
The remaining counts and allegations were dismissed.
Appellant was sentenced to a total of 20 years in
term of nine years on count 1, the middle term of one year for count 2 (to run
concurrent with count 1), plus 10 years for the firearm allegation, to run
consecutively. Appellant was given
presentence custody credits, and
ordered to pay various fees and fines.
Appellant filed a notice of appeal and requested a
certificate of probable cause contending he received ineffective assistance of
counsel because his trial attorney either failed to request that his trial be
severed from that of his codefendants, or had done so during a hearing at which
appellant had not been present.
Appellant’s request for a certificate
of probable cause was denied.
DISCUSSION
The Attorney General maintains this appeal must be
dismissed because the trial court denied appellant’s application for a
certificate of probable cause. We agree.
A
defendant who pleads guilty or no contest generally may not appeal a judgment
of conviction unless he timely files a statement with the trial court “showing
reasonable constitutional, jurisdictional, or other grounds going to the
legality of the proceedings,” and obtains a certificate of probable cause for
the appeal. (§ 1237.5, subd. (a); Cal.
Rules of Court, rule 8.304(b); People v.
Mendez (1999) 19 Cal.4th 1084, 1096.)
“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, 565.) The California
Supreme Court’s decisions in Mendez,
at p. 1098 and People v. Panizzon
(1996) 13 Cal.4th 68, 89, fn. 15, emphasize the need for strict compliance with
section 1237.5 and Cal. Rules of Court, rule 31(d) (now Cal. Rules of Court,
rule 8.304(b)).
“The
purpose of section 1237.5 is ‘to create a mechanism for trial court
determination of whether an appeal raises any
nonfrivolous cognizable issue, i.e., any nonfrivolous issue going to the
legality of the proceedings. Before the
enactment of section 1237.5, the mere filing of a notice of appeal required
preparation of a record and, in many cases, appointment of counsel; only after
expenditure of those resources would an appellate court determine whether the
appeal raised nonfrivolous issues that fell within the narrow bounds of
cognizability. Section 1237.5 was
intended to remedy the unnecessary expenditure of judicial resources by
preventing the prosecution of frivolous appeals challenging convictions on a
plea of guilty.’ [Citation.]” (People
v. Brown (2010) 181 Cal.App.4th 356, 359.)
“There
are two exceptions to the requirement for a certificate of probable cause for
an appeal after a plea of guilty or nolo contendere. The first applies where the notice of appeal
states that the appeal is based on the denial of a motion to suppress evidence
under section 1538.5, subdivision (m).
(Cal. Rules of Court, rule
8.304(b)(4)(A).) . . . . [¶] The second exception is where the defendant
is not attempting to challenge the validity of his or her plea, ‘but is asserting
only that errors occurred in the subsequent adversary hearings conducted by the
trial court for the purpose of determining the degree of the crime and the
penalty to be imposed.’ [Citations.]” (People
v. Brown, supra, 181 Cal.App.4th
at p. 360.) Appellant does not address
his failure to secure a certificate of probable cause, nor does he argue that
this action falls within either exception.
Appellant filed a notice
of appeal seeking to withdraw his plea based on the alleged ineffective
assistance of his trial attorney (failure to move to sever appellant’s
trial). The trial court denied his
request. He has abandoned that assertion
and now seeks to attack the validity of his plea asserting he was inadequately
admonished regarding the effect of his waiver and therefore did not properly
waive his constitutional rights when he entered his plea. Appellant’s challenges to the adequacy of the
admonitions constitute an attack on the validity of his plea. They may not be raised on appeal without
securing a certificate of probable cause.
In People v. Panizzon,
observed that a defendant’s claim that he was inadequately admonished regarding
the waiver of his appellate rights contained in the plea agreement was “clearly
subject to section 1237.5” under People
v. Kaanehe (1977) 19 Cal.3d 1, 8. (
Appellant’s challenge to the validity of and request to withdraw his
plea falls squarely within the scope of section 1237.5; his claims are not
cognizable on appeal absent a certificate of probable cause. Accordingly, the appropriate remedy is to
dismiss the appeal. (
not proceed to merits but must order dismissal of appeal where defendant fails
to secure certificate of probable cause]; People
v. Puente (2008) 165 Cal.App.4th 1143, 1150.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
JOHNSON,
J.
We concur:
ROTHSCHILD, Acting P. J.
CHANEY, J.
name="_ftn1" title="">[1] Statutory references are to
the Penal Code.
name="_ftn2" title="">[2] We are not in a position to determine whether the
failure of Dorado’s trial counsel to request and secure a certificate of
probable cause based on the purportedly inadequate admonition constituted
ineffective assistance of counsel. His
remedy, if any, to establish whether the conduct and decisions of his trial
counsel constitute ineffective assistance would be to obtain such a determination
by filing a petition for writ of habeas corpus.
