P. v. Ahwazi
Filed 4/17/07 P. v. Ahwazi CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. ARASH AHWAZI et al., Defendants and Appellants. | D047362, D047390, D047391, D047392 (Super. Ct. No. SCD 187461) (Super. Ct. No. SCD 187459) (Super. Ct. No. SCD 187460) (Super. Ct. No. SCD 187462) |
CONSOLIDATED APPEALS from an order of the Superior Court of San Diego County, Roger W. Krauel, Judge. Dismissed.
DISCUSSION
Defendants Arash Ahwazi, Mark Kulesa, Alejandro Kocherga, and Eugene Kocherga seek review of the trial court's September 20, 2005 order denying their motion to suppress evidence in their criminal cases.
On September 20, 2005, the trial court held a hearing on the defendants' joint motion to suppress evidence. Defense counsel argued that the requirements of the California wiretapping statute had not been met because the prosecution failed to establish that the district attorney was absent at the time Assistant District Attorney Rodriguez signed the applications for the wiretaps. At the conclusion of the hearing, the trial court adopted its prior tentative ruling and denied the defendants' motion.
On September 21, 2005, Kulesa pled guilty to possession of a controlled substance. Kulesa agreed to a deferred entry of judgment and was ordered to attend a drug program pursuant to Penal Code[1]sections 1000 and 1000.1. Ahwazi, A. Kocherga, and E. Kocherga each pled guilty to possession of a controlled substance on September 22, agreed to a deferred entry of judgment, and were also ordered to attend a drug program under sections 1000 and 1000.1.
The appellants filed notices of appeal on October 20, 2005. Kulesa asserts in his notice of appeal that he is appealing from "the order or judgment entered on . . . 9-21-05," which is the date the trial court ordered him to attend a section 1000 drug program. The other three appellants identify "order[s] or judgment[s] entered on . . . 9-22-05," the date on which the trial court ordered them to attend section 1000 drug programs, as the orders or judgments from which they appeal. On April 20, 2006, this court granted the appellants' motion to consolidate their appeals.
On March 23, 2007, this court requested supplemental briefing from the parties asking them to address whether there is an appealable order or judgment in any of the underlying criminal cases. Specifically, we asked the parties to comment on the applicability of People v. Mazurette (2001) 24 Cal.4th 789, 794 (Mazurette). In Mazurette, the Supreme Court considered whether an appellant who had been granted deferred entry of judgment under sections 1000 and 1000.1 following the entry of a plea of guilty or nolo contendere, could appeal the trial court's pretrial decision to deny a motion to suppress evidence. (Id. at p. 792.) The Mazurette court held that a "defendant cannot appeal following a deferred entry of judgment" when, as in this case, there exists no separately appealable order and no final judgment. (Id. at p. 794.)
This court received supplemental letter briefs from the People and from the attorneys for appellants.[2] Nothing in the supplemental letter briefs establishes the existence of an appealable order or judgment in any of the appellants' cases. Kulesa's attorney states that Kulesa failed to meet the requirements of section 1000, and that the court has issued a warrant for his arrest. However, it is clear that no judgment has been entered in Kulesa's case.[3]
"'It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.' [Citations.]" (Mazurette, supra, 24 Cal.4th at p 792.) The appellants have not established that there exists an appealable order or judgment in any of the underlying cases. We must therefore dismiss the appellants' consolidated appeals.
DISPOSITION
The appeals are dismissed.
AARON, J.
WE CONCUR:
McCONNELL, P. J.
NARES, J.
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[1] Further statutory references are to the Penal Code unless otherwise indicated.
[2] Attorney Ronis, who represents defendants Ahwazi and E. Kocherga, moved to join the supplemental letter brief submitted on April 5, 2007 by Attorney Valencia, who represents defendants A. Kocherga and Kulesa. We grant the motion and consider the supplemental brief filed on April 5 as having been filed on behalf of all of the defendants.
[3] Kulesa's attorney states that because Kulesa failed to meet the requirements of section 1000, he "will necessarily have a judgment entered against him." This statement establishes that no judgment has been entered. We disagree with Kulesa's assertion that Mazurette no longer applies to his situation because "Mazurette appears to stand for the proposition that an appeal is not permissible where an entry of judgment has been deferred and there has been no failure on the part of any defendant to fulfill the requirements of PC 1000." The Supreme Court clearly specified that the inability to appeal after a deferred judgment stems from the lack of an appealable order or judgment, not from the fact that the defendant has successfully fulfilled the requirements of section 1000. "In defendant's case, however, the trial court, with her consent, deferred entry of judgment pursuant to section 1000.1. Accordingly, there is as yet no judgment from which defendant can appeal. If she successfully completes her rehabilitation, the charges will be dismissed and the slate wiped clean. If, instead, defendant fails to 'perform[] satisfactorily' in her assigned program, 'is not benefiting from education, treatment, or rehabilitation,' or engages in additional criminal behavior, 'the court shall render a finding of guilt to the charge or charges pled, enter judgment, and schedule a sentencing hearing as otherwise provided in this code.' [Citation.] ( 1000.3) Only following entry of judgment pursuant to section 1000.3 will a judgment exist from which defendant can appeal." (Mazurette, supra, 24 Cal.4th at p. 794 (first italics in original; second italics added).) Kulesa has not established that the court has entered judgment pursuant to section 1000.3 in his case.
