P. v. Thomas

Filed 5/28/08 P. v. Thomas CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Allen J. Webster, Judge. Dismissed.

Law Offices of Howard Lynch and Howard Lynch for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.

________________

Defendant Ramile Lajon Thomas appeals from a judgment entered after he pled no contest to one count of sodomy by use of force (Pen. Code, 286, subd. (c)(2))^[1]and admitted to inflicting great bodily injury in the commission of the offense. ( 12022.8.) The trial court found defendant was a minor who at the time of commission of the offense was at least 14 years of age and prior to the commission of offense had been found to be a person described in Welfare and Institutions Code section 602 for the commission of an offense listed in Welfare and Institutions Code section 707, subdivision (D). The trial court denied probation and sentenced defendant to state prison for a total of 11 years pursuant to the plea agreement.

On appeal, defendant contends that (1) the statutory scheme created by Proposition 21 and Welfare and Institutions Code section 707 violates the equal protection clause of the federal and state Constitutions; and (2) his plea was not free, voluntary, and informed. We dismiss the appeal because defendant was required to, but did not, obtain a certificate of probable cause.

PROCEDURAL BACKGROUND

On March 16, 2007, defendant filed a notice of appeal, requesting a certificate of probable cause on the basis that his plea of no contest was the result of ineffective assistance of counsel; he was poorly advised as to the consequences of his plea; he was coerced into entering a plea; his plea was not free, voluntary, or intelligently given; his sentence constituted cruel and unusual punishment under the federal and state Constitutions; and he was denied equal protection under the federal and state Constitutions because the prosecution has the right to try him as an adult while other 14-year-olds committing felony crimes are not tried as adults. The trial court denied his request for certificate of probable cause.

DISCUSSION

Defendant was required to, but did not, obtain a certificate of probable cause

Neither defendant nor the People briefed the issue of whether defendant was required to obtain a certificate of probable cause. We therefore requested letter briefing on the issue.

Section 1237.5 provides, in pertinent part, No 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 . . . .

California Rules of Court, rule 8.304 (b)(4) provides that the defendant need not comply with the filing in the superior court of a notice of appeal and the filing of a certificate of probable cause if the notice of appeal states that the appeal is based on the denial of a motion to suppress evidence under section 1538.5 or on grounds that arose after entry of the plea and do not affect the pleas validity.

In his letter brief, defendant seems to concede that It appears that to the extent the appeal challenges the validity of the guilty plea, section 1237.5 of the [Penal Code], a certification of probable cause would apply. . . .  But, it would be extremely unfair not to hear the [defendants] appeal despite the fact that he attempted to comply with the section by submitting his request for a certificate of probable cause. Yet he also states that he filed substantive complaints which did not seek to void the plea itself, i.e., that his constitutional right to equal protection was violated and that his sentence constituted cruel and unusual punishment. Defendant is incorrect. A constitutional challenge is an attack on the validity of the plea. (People v. Young (2000) 77 Cal.App.4th 827, 832 [By arguing that the maximum sentence is unconstitutional, he is arguing that part of his plea bargain is illegal and is thus attacking the validity of the plea.].)

We conclude that the appeal must be dismissed because defendant failed to obtain a certificate of probable cause.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

ASHMANN-GERST

We concur:

____________________, P. J.

BOREN

____________________, J.

CHAVEZ

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.