Opinion
A153885
09-18-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE MANUEL TORRES, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR334416)
Defendant Jose Manuel Torres, Jr., was placed on supervised probation after pleading no contest to felony injury to a domestic partner (Pen. Code, § 273.5, subd. (a)) and misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)). Before entering the plea, the court confirmed with defendant that his attorney had explained the terms of his plea agreement and defendant indicated that his attorney had done so and that he understood the terms of the plea. Defendant's plea included a broad waiver of his right to appeal.
On his plea form, defendant initialed the following statement: "Even though I will be convicted in this case as a result of my plea, I have the right to appeal the judgment and rulings of the court (e.g.: Penal Code Section 1538.5(m)). I give up my right of appeal."
At sentencing, the court imposed specific conditions of probation including, among others, that he abstain from the use of alcohol and illegal drugs, not possess any drug paraphernalia, not use marijuana recreationally, or medicinally without prior court approval, and submit to and pay for drug testing.
In his notice of appeal, filed in the superior court on March 9, 2018, defendant indicated that the appeal is "based on the sentence or other matters occurring after the plea that do not affect the validity of the plea." The record does not contain a certificate of probable cause.
Respondent has moved to dismiss the appeal under People v. Espinoza (2018) 22 Cal.App.5th 794, 802, in which the court held that "[w]here a defendant broadly waives the right to appeal as part of a plea, he or she must obtain a certificate of probable cause to appeal on any ground covered by the waiver, not just grounds that were apparent before entry of the plea." Defendant does not dispute that the waiver entered in this case is identical to that entered in Espinoza. He argues that Espinoza was wrongly decided and should not be followed. We find the reasoning in Espinoza sound and adopt it as our own. For this reason, the appeal must be dismissed.
Because we dismiss the appeal on this ground, we need not address the additional ground on which the motion to dismiss is based, that defendant has absconded.
Disposition
The appeal is dismissed.
Pollak, Acting P.J. We concur: Jenkins, J.
Ross, J.
Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------