Opinion
B231957
01-11-2012
THE PEOPLE, Plaintiff and Respondent, v. EDWARD OROZCO, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. GA076304)
BOREN, P. J., DOI TODD, J. ASHMANN-GERST, J.
Appellant Edwardo Orozco appeals from the denial of his motion to withdraw his plea to carjacking and attempted carjacking in violation of Penal Code sections 215, subdivision (a) and 664. Appellant was sentenced to the agreed-upon term of 17 years two months. We appointed counsel to represent appellant on this appeal. After examination of the record, counsel filed an "Opening Brief" containing an acknowledgment that he had been unable to find any arguable issues. On August 31, 2011, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider. No response has been received to date.
All further references to statutes are to the Penal Code unless stated otherwise.
According to the testimony at the preliminary hearing, Louis Mac, the owner of a 1993 Honda Civic, approached his parked car and saw appellant suddenly come out of the car with an automatic handgun. Appellant pointed the gun and asked Mac for the keys. When Mac said he did not have them, appellant asked Mac's companion, Jonathan Chavez, for his "stuff." Chavez, whose 1995 Honda Civic was parked behind Mac's, handed over his keys and his credit cards. Mac gave appellant his phone. Appellant drove off in Chavez's car. There was also testimony from Enriquez Cortez, who stated that his 1993 Honda Civic was stolen from the place where he had parked it. Police found Cortez's car abandoned near Mac's car. When police attempted to pull over appellant for a traffic stop, he led them on a high-speed chase and a foot pursuit.
On August 13, 2010, appellant agreed to plead no contest to one count of carjacking (count 1) and one count of attempted carjacking (count 3). Both counts included a firearm-use allegation pursuant to section 12022.53, subdivision (b). The record shows that, at the taking of the plea, the prosecutor, on behalf of the court, advised appellant that his maximum exposure based on all the charges was 24 years six months.In return for his no contest plea, appellant would receive a sentence of 17 years two months with credit for the time he had served. The prosecutor asked appellant, "Is that your understanding of what you're going to do this morning, sir?" After conferring with his attorney, appellant answered in the affirmative. After being given the proper advisements, appellant pleaded no contest to counts 1 and 3 and admitted the firearm-use allegations.
Appellant was also charged with two counts of second degree robbery (counts 2, 4), attempted grand theft auto of Mac's car (count 5), grand theft auto of Cortez's car (count 6), evading an officer with willful disregard for the safety of persons and property (count 7), and possession of a firearm by a felon (count 8).
Appellant was to be sentenced on September 29, 2010. On that date, defense counsel informed the court that appellant wished to withdraw his plea and to hire new counsel. Counsel was not relieved at that time. The matter was continued over the People's objection until November 3, 2010, for a hearing on the motion to withdraw the no contest plea. At the November 3 hearing, defense counsel told the court that appellant had been unable to hire another attorney and wanted another continuance. The trial court told appellant that the transcript clearly showed that everything was very carefully explained to him, and he was not tricked. The trial court nevertheless relieved retained counsel and appointed a public defender who agreed to review the file and determine if there was a basis for a motion to withdraw the plea.
At a December 30, 2010 hearing, the public defender informed the trial court that, after doing legal research and speaking to former counsel, she had determined that there was no legal basis for withdrawal of the no contest plea. She believed former counsel's performance had been well beyond adequate. After being granted another continuance, appellant was sentenced on February 16, 2011, to the agreed-upon term of 17 years two months. Having committed violent felonies, appellant was subject to receiving 15 percent credits. (§§ 2933.1, subd. (a), 667.5, subd. (c).) At sentencing, appellant received 732 actual days credit and 109 days conduct credits.
The sentence consisted of the low term of three years and 10 years for the firearm-use allegation in count 1 and a consecutive one-third the midterm (10 months) and one-third of the 10-year firearm-use allegation (three years four months) in count 3.
Appellant filed a notice of appeal in which he checked the box stating that the basis for appeal was "other," and he completed the request for certificate of probable cause on the appeal form. In the narrative portion of the request, appellant claimed that his lawyer misrepresented the plea agreement to him. He stated that he was incorrectly informed that his maximum sentence was between 30 and 40 years and that he would receive 50 percent credits. He also was not provided with a Spanish interpreter. Appellant added that, because of fear and intimidation by the courts, he was made to take a deal that he did not want. The trial court denied appellant's request for a certificate of probable cause.
By checking the box marked "other," appellant indicated that the appeal was not based on the sentence or other matter occurring after the plea, on the denial of a motion to suppress evidence, or on a challenge to the validity of the plea.
"A defendant must obtain a certificate of probable cause in order to appeal from the denial of a motion to withdraw a guilty plea, even though such a motion involves a proceeding that occurs after the guilty plea. [Citation.]" (People v. Johnson (2009) 47 Cal.4th 668, 679; In re Chavez (2003) 30 Cal.4th 643, 651.) California Rules of Court, rule 8.304, provides that, along with the notice of appeal, a defendant appealing from a judgment after a plea of guilty or nolo contendere must file the statement required by section 1237.5 for issuance of a certificate of probable cause. (Rule 8.304(b)(1).) The rules further provide that if a defendant does not file the statement required by section 1237.5, or if the superior court denies a certificate of probable cause, the appeal is "'Inoperative.'" (Rule 8.304(b)(3).) The only exceptions to the certificate requirement occur when appeals are based on the denial of a motion to suppress evidence under section 1538.5, or they are based on grounds that arose after the defendant entered the plea and that do not affect the plea's validity. (Rule 8.304(b)(4).)
Section 1237.5 provides in pertinent part that "[n]o 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."
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. (People v. Panizzon (1996) 13 Cal.4th 68, 76.) Appellant's issues clearly pertain to the validity of his plea, and he was required to obtain a certificate of probable cause. Since he failed to do so, any appeal based on these issues is inoperative. (§ 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1095 [interpreting former rule 31(d), which corresponds to current rule 8.304(b)(1)-(5)].) People v. Mendez held that section 1237.5 and its implementing rules of court "should be applied in a strict manner." (People v. Mendez, at p. 1098.) "Whether the appeal seeks a ruling by the appellate court that the guilty plea was invalid, or merely seeks an order for further proceedings aimed at obtaining a ruling by the trial court that the plea was invalid, the primary purpose of section 1237.5 is met by requiring a certificate of probable cause for an appeal whose purpose is, ultimately, to invalidate a plea of guilty or no contest." (People v. Johnson, supra, 47 Cal.4th at p. 682.)
We have reviewed appellant's request for a certificate of probable cause to determine whether his statement presented any cognizable issue for appeal that would have required the trial court to issue the certificate. (People v. Johnson, supra, 47 Cal.4th at p. 676 ["The trial court must issue the certificate if the defendant's statement under section 1237.5 presents 'any cognizable issue for appeal which is not clearly frivolous and vexatious'"].) Appellant's complaints, noted ante, present no cognizable issues. A reading of the transcript of the plea reveals that appellant was thoroughly advised of his constitutional rights and the consequences of entering a no contest plea. Appellant did not request a Spanish interpreter until the proceeding on December 30, 2010. The trial court noted at that time that appellant "had come to this court numerous occasions and at all times when the court communicated with him I spoke to him in English. It was clear to the court he understood the court's questions and responded appropriately but he asked for a Spanish interpreter, so now he has one." At the same proceeding, appellant addressed the court in English. The prosecutor noted for the record that, "Mr. Orozco has been using the assistance of the Spanish interpreter. When he addressed the court he spoke in English. From my ear he speaks perfect English, no accent, but if he is using the assistance of the Spanish interpreter he should address the court in Spanish and the interpreter translate for him." We conclude defendant failed to set forth any reason justifying the issuance of a certificate of probable cause.
Since appellant was required to obtain a certificate of probable cause to perfect his appeal and failed to do so, his appeal must be dismissed. We have examined the entire record, including the Marsden hearings, and we are satisfied that appellant's attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
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The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.