P.
v. Contreras
Filed 11/15/13 P. v. Contreras CA4/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
THE PEOPLE,
Plaintiff and Respondent,
v.
SANDRA LILLIANA CONTRERAS,
Defendant and Appellant.
E058581
(Super.Ct.No. INF1102281)
OPINION
APPEAL
from the Superior Court
of
County. Richard A.
Erwood, Judge. The appeal is dismissed.
Cynthia M.
Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood and
Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
In
this classic case of “buyer’s remorse,†defendant and appellant Sandra Lilliana
Contreras seeks reversal of her conviction by way of guilty plea to three
counts of assault with a deadly weapon and one count of leaving the scene
of a vehicle accident. (Pen. Code, §
245, subd (a)(1); Veh. Code, § 20001, subd. (a).)
We
find that defendant’s appeal is not cognizable, because the trial court
correctly refused to issue a certificate of probable cause.
I
STATEMENT OF FACTS
Because
the facts of the case are not in issue, we will be brief. The incident occurred at a nightclub parking
lot.
title="">[2] The victims were intending to enter their
vehicles when another vehicle parked in the lot began to reverse in their
immediate vicinity. After one of the
victims was nearly hit and rapped defendant’s car in remonstration, defendant
first began to drive away but then reversed towards the victims’ group. After an exchange of words, defendant
apparently then maneuvered her vehicle back and forth, striking three victims,
one of them twice. Victim M.F. suffered
severe and permanent injuries to one of her legs, which was pinned between two
vehicles when she was struck.
The
preliminary hearing was held on March 6, 2012. After several continuances, trial was set for
February 5, 2013.
On that date, however,
defendant entered an “open plea†of guilty to all four counts, and admitted
great bodily injury enhancements with respect to count 1 under Penal Code
section 12022.7, subdivision (a), and permanent serious injury enhancements
with respect to count 4 under Vehicle Code section 20001, subdivision (b)(2). At sentencing, the court imposed the upper
term of four years for the injury count (count 1), plus three years for the
great bodily injury enhancements; the terms for the other three counts (counts
2-4) were imposed to run consecutively, for a total of 10 years.
Defendant
filed a timely notice of appeal and
requested a certificate of probable cause.
The notice of appeal stated as grounds that “[defendant] states that she
did not understand what she was agreeing to when she pled guilty. [Defendant] states that her attorney did not
properly explain the plea to her.†The
trial court denied the request.
II
THE PLEA FORM
In
her opening brief, defendant argues that her plea was invalid because the trial
court, in accepting the plea, did not expressly ask defendant whether she
and the “[n]ature of the [c]onstitutional [w]aivers [s]et [f]orth in the [p]lea
[f]orm [t]hat [s]he [h]ad [e]xecuted.â€
She does not deny that she signed a standard “change of plea†form,
which properly advised her of the relevant constitutional rights, or that she
placed her initials beside each listed right.
She also initialed the line confirming that she had had “adequate time
to discuss with my attorney (1) my constitutional rights, (2) the consequences
of any guilty plea, and (3) any defenses I may have to the charges against me.â€
In
accepting the plea, the court first confirmed that defendant had signed and
initialed the form before it. It then
took defendant’s plea, and ensured that she understood that the great bodily
injury enhancement made her ineligible for probation, that the three charges
under Penal Code section 245 were “strikes,†and that her driver’s license
would be permanently revoked.
III
THE APPEAL AND WRIT PETITION
Defendant
simultaneously filed her opening brief and a petition for writ of mandate. The latter sought to have this court compel
the superior court to issue a certificate of probable cause. Because the appeal seeks to challenge the
validity of the plea, she recognized (and does not here contest) that the
certificate is a prerequisite to her appeal.
(Pen. Code, § 1237.5; People v.
Panizzon (1996) 13 Cal.4th 68, 75-76.)
If the trial court has abused its discretion in denying the request for
a certificate of probable cause, a writ petition seeking to have the appellate
court compel issuance of the certificate is the proper remedy. (People
v. Johnson (2009) 47 Cal.4th 668, 676.)
IV
DEFENDANT IS NOT ENTITLED TO
A CERTIFICATE OF
PROBABLE CAUSE
The purpose of Penal
Code section 1237.5’s requirement is to weed out meritless appeals by providing
a mechanism through which the trial court can determine, in a “gatekeeperâ€
function, whether the proposed appeal raises any nonfrivolous cognizable issue
going to the legality of the proceedings.
(See People v. Brown (2010)
181 Cal.App.4th 356, 359.) The trial
court must issue the certificate if the notice of appeal states such an issue,
and once the certificate has been issued, the defendant may raise
v. Johnson, supra, 47 Cal.4th 668
at p. 676.)
So
let us examine the notice of appeal. It
stated that “she did not understand what she was agreeing to†and that her
attorney “did not properly explain the plea to her.†This stated no cognizable grounds for appeal because any such claim would
necessarily involve evidence outside the
record.
title="">[4] Therefore, defendant would have been required
to try and raise these issues through a procedural vehicle such as a petition
for writ of habeas corpus. (
Cal.4th 264, 266-267; People v. Black
(2009) 176 Cal.App.4th 145, 153.) Thus,
the trial court certainly did not abuse its discretion in determining that the
notice of appeal stated no nonfrivolous grounds for appeal.
Hence,
we will summarily deny the petition for writ of mandate and the appeal must be
dismissed.
However,
out of an excess of caution, we will also very briefly explain why defendant’s
appeal would have been unsuccessful on the merits.
Defendant
argues that her plea is facially invalid because the trial court did not orally
confirm with her that she “understood†the contents of the change of plea form
and the constitutional rights she waived therein. But it is well established that the trial court,
in taking a plea of guilty, may rely on the defendant’s execution of a properly
worded plea form to support the conclusion that the defendant has been informed
of and agreed to waive his or her Boykin-Tahl
rights.
title="">[5] (In re
Ibarra (1983) 34 Cal.3d 277, 285 [disapproved on other grounds in
pp. 1174-1175].)
Knowledge of these rights is a simple way to determine whether the
defendant’s plea is voluntary and intelligent.
(People v. Howard,
Defendant
relies on language in Ibarra, which
states that the “judge need only determine whether defendant had read and
understood the contents of the form, and had discussed them with his
attorney. If the questioning of
defendant and his attorney leads the judge to believe that the defendant does
not fully comprehend his rights . . . the judge must conduct further canvassing
of the defendant to ensure a knowing and intelligent waiver of rights.†(In re
Ibarra, supra, 34 Cal.3d 277 at p. 286.)
We do
not read this as imposing a talismanic duty on the trial court to ask the
defendant “Do you understand your rights?†or, still less to go through each
right individually and grill the defendant as to his or her comprehension of
the right. In this case the “felony plea
form†not only lists the rights being waived, but explains them in simple
terms. For example, the
meaning that “I cannot be forced to testify against myself, but I also have the
right to testify in my own defense if I choose to do so.†The form also included counsel’s affirmation
that he was satisfied that defendant understood her rights and that she was
waiving them. At the change of plea
hearing, defendant confirmed that she was entering the plea freely and
voluntarily.
Under
these circumstances we do not believe the trial court had any obligation to go
further and quiz defendant concerning the level and extent of her
“understanding†of her crucial rights before the plea could be considered
intelligent and voluntary in the constitutional sense. Cases in which incomplete advisals were
given, or in which the defendant never executed a change of plea form, are not
applicable. (E.g., People v. Christian (2005) 125 Cal.App.4th 688.)
Hence,
even if the notice of appeal had stated legally tenable grounds for an appeal,
the appeal would not succeed.
V
DISPOSITION
The
appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
KING
J.
name="_ftn1" title=""> [1] Defendant filed a petition
for writ of mandate on this issue (case No. E059200), which we ordered
considered with this appeal. We will
resolve that petition by separate order.
facts are taken from the evidence received at the preliminary hearing.
