P. v. Pratt

Filed 4/12/07 P. v. Pratt CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Anthony V. Pratt appeals from a judgment entered following his guilty plea to several offenses. He contends he was deprived of effective assistance of counsel because his trial attorney failed to move to withdraw his guilty pleas on proper grounds. We conclude that in the absence of a certificate of probable cause, the appeal must be dismissed.[1]

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged by information with selling or transporting methamphetamine (Health & Saf. Code,  11379, subd. (a)), resisting a peace officer resulting in serious bodily injury to the officer (Pen. Code,  148.10, subd. (a)),[2]resisting the same officer as an executive officer ( 69), with a special enhancement allegation of personally inflicting great bodily injury on the officer ( 12022.7), and resisting a second executive officer ( 69). The information also included a sentence enhancement allegation that defendant had served a prior prison term ( 667.5, subd. (b)).

On May 31, 2005, defendant pleaded guilty to transporting or selling a controlled substance, resisting a peace officer resulting in serious physical injury, and resisting an executive officer, based upon an agreed aggregate prison term of five years eight months. The remaining charge and allegations were dismissed. Based on the stipulation of counsel and defendant, the court found defendant was addicted or in imminent danger of becoming addicted to narcotics. The court suspended the criminal proceedings and committed defendant to the custody of the Director of Corrections for confinement in the California Rehabilitation Center (CRC) until such time as he was discharged. However, the court informed defendant that because of the nature of the current offenses and his prior record, there was no guarantee that CRC would accept him and that he might be excluded because of what is referred to as excessive criminality. The court informed defendant that if CRC did exclude him, the court would impose the agreed sentence.

On September 21, 2005, the court received a letter from the warden of CRC indicating that after a review of defendants suitability for the Civil Addict Program, CRC staff had concluded defendant was not suitable because of his dual case status under both a Felon Commitment and a Civil Addict Commitment. The wardens letter explained the basis for defendants exclusion as follows: On August 3, 2005, Mr. Anthony Pratt appeared before the Unit Classification Committee. After careful consideration of all pertinent case factors, the Unit Classification Committee acted unanimously to exclude Mr. Anthony Pratt from the Civil Addict Program because of his dual case status under both a Felon Commitment and a Civil Addict Committee. [] The decision is in compliance with Section 3053 of the Welfare and Institutions Code and I indeed view Mr. Anthony Pratt as unsuitable for the program because a person while serving a parole revocation term may not be committed to the Civil Addict Program. Defendant was informed he could administratively appeal the committees decision but he did not do so.

On December 12, 2005, defendant was returned to the court for sentencing. Three days later, he moved to withdraw his guilty pleas on the ground that he believed that if he were excluded from the CRC program, he would be allowed to withdraw his guilty pleas. The court denied defendants motion, agreeing with the prosecutor that at the change of plea proceeding, defendant was told that if he were excluded from CRC, the court would impose the previously suspended sentence. The court imposed the agreed term of five years eight months. Defendant filed a timely notice of appeal from the judgment and sentence, but he did not secure a certificate of probable cause.

DISCUSSION

Defendants sole appellate challenge relates to the ineffective assistance of his trial counsel. According to defendant, an integral part of his plea agreement was the referral to CRC for treatment, and although he was told there was no guarantee that he would be accepted, he was not advised that CRC necessarily would consider him ineligible because he was then serving a term based on a parole revocation. He contends his trial counsel should have moved to withdraw his guilty pleas on the combined grounds that he was misadvised concerning his eligibility for CRC treatment and that a crucial term of his plea agreement, CRCs actual consideration of his fitness for treatment, had not been fulfilled. Defendant asks us to vacate his sentence and remand the matter to the trial court to allow him the opportunity to move to withdraw his guilty pleas on those grounds.

Defendant concedes that a certificate of probable cause under section 1237.5 is required to assert on appeal a claim that is in substance an attack on the validity of a guilty plea. He contends, however, that his challenge relates to an event occurring after the plea that does not require us to pass on the validity of the plea itself, but merely requires us to determine whether sufficiently meritorious grounds exist to justify a motion to withdraw his guilty pleas on the grounds he asserts. We conclude defendants challenge cannot be considered in the absence of a certificate of probable cause.

In the case of a judgment of conviction following a plea of guilty or no contest, section 1237.5 authorizes an appeal only as to a particular category of issues and requires that additional procedural steps be taken. That statute provides: No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both 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 re Chavez (2003) 30 Cal.4th 643, 650.) California Rules of Court, rule 8.304(b)(4),[3] codifies two exceptions: issues involving a search or seizure that is contested under section 1538.5 and issues that arise after entry of the plea that do not challenge its validity. (See also In re Chavez, supra, 30 Cal.4th at pp. 650-651, fn. 3; People v. Mendez (1999) 19 Cal.4th 1084, 1104.)

We are not now concerned with whether there are meritorious grounds for a motion to withdraw defendants guilty pleas. The impact of section 1237.5 relates to the procedure in perfecting an appeal from a judgment based on a plea of guilty, and not to the grounds upon which such an appeal may be taken. [] In determining the applicability of section 1237.5, the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made. (People v. Ribero (1971) 4 Cal.3d 55, 63.) If the challenge is in substance a challenge to the validity of the plea, the appeal [is] subject to the requirements of section 1237.5. (People v. Panizzon (1996) 13 Cal.4th 68, 76.)[4]

Defendant relies on People v.Osorio (1987) 194 Cal.App.3d 183 (Osorio). In that case, the Sixth Appellate District held that a certificate of probable cause was not required to challenge defense counsels failure to file a motion to withdraw a guilty plea. (Id. at p. 187.) In so ruling, the court explained: In the present case, . . . no motion to withdraw the plea was ever filed. If the motion had been filed and denied, it appears from the record that a section 1237.5 certificate would have been required because the plea itself ultimately would be placed in issue. The present appeal, however, attacks the failure of counsel to file the motion in the first instance. The relief requested does not require that we pass upon the validity of the guilty plea. Accordingly, the appeal addresses only the events occurring after the plea and the requirements of section 1237.5 are not applicable. (Ibid.)

Defendant acknowledges that Osorio was not followed by the Third Appellate District in People v. Emery (2006) 140 Cal.App.4th 560, 565 (Emery). In Emery, defendant challenged the denial of a continuance of the sentencing hearing to permit defense counsel to investigate whether the victims recantation constituted a ground to withdraw defendants no contest plea and admissions. (Id. at pp. 564, 566.) The court dismissed defendants appeal after concluding that a certificate of probable cause was required: Here, the sole reason for the continuance motion was to allow defense counsel to investigate whether the victims recantation was a ground to withdraw defendants no contest plea and admissions. Thus, in substance, the motion was to challenge the validity of the plea and admissions. Consequently, a certificate of probable cause was required, and defendants failure to obtain one is fatal to this appeal. (Id. at p. 565.) The Emery court disagreed with the reasoning of Osorio, particularly in light of the California Supreme Courts more recent decisions in People v. Panizzon, supra, 13 Cal.4th at page 89, footnote 15, and People v. Mendez (1999) 19 Cal.4th 1084, at page 1098. . ., which emphasize the need for strict compliance with section 1237.5 and rule 30(b) [now 8.304(b)]. The sole basis for the appeal in Osorio was the claim that trial counsel was ineffective in refusing to file a motion to withdraw the appellants guilty plea. (Osorio, supra, 194 Cal.App.3d at p. 185.) The validity of that claim of error was dependent upon the validity of the guilty plea. In substance, the claim of error was an attack on the plea itself. Hence, a certificate of probable cause should have been required. (People v. Panizzon, supra, 13 Cal.4th at p. 76.) (Emery, supra, at p. 565.)

Defendant argues the Emery court failed to acknowledge the inherent distinction between claims of error that require a reviewing court to determine whether the underlying guilty plea should be invalidated and those claims that merely request the reviewing court to provide a remedy for counsels deficient postplea performance. However, to establish whether his trial attorney was ineffective, defendant has the burden of proving that counsels representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsels unprofessional errors, the result would have been different. (People v. Kelly (1992) 1 Cal.4th 495, 519-520.) A challenge to counsels failure to file a motion to withdraw necessarily requires the court to consider prejudice, which necessarily involves reviewing the merits of the potential motion. If it is not reasonably probable that the guilty pleas would have been vacated, remand is not warranted. We therefore conclude that defendants contention on appeal does involve a challenge to the validity of the guilty pleas, which is barred by the failure to secure a certificate of probable cause.

We also reject defendants argument that section 1237.5 does not apply because his counsels failure was a postplea error. To hold otherwise would be to invite remand requests as a matter of course, and would be wholly contrary to the purpose of section 1237.5, which is to bar challenges to the validity of a plea in the absence of a certificate of probable cause. (People v. Ribero, supra, 4 Cal.3d at pp. 63-64.) As noted, a defendant may appeal without a certificate of probable cause if he or she does so solely on postplea matters not challenging the pleas validity. (People v. Mendez, supra, 19 Cal.4th at p. 1096; italics added; see rule 8.304(b)(4).)

We therefore conclude that the appeal must be dismissed because defendants contentions cannot be reviewed in the absence of a certificate of probable cause.[5]

DISPOSITION

The appeal is dismissed.

_________________________

Pollak, J.

We concur:

_________________________

Parrilli, Acting P. J.

_________________________

Siggins, J.

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[1] We previously consolidated this appeal (A112874) with a related petition for a writ of habeas corpus (A114934). We now deconsolidate the matters and address the petition for a writ of habeas corpus by a separate order under A114934.

[2] All further unspecified statutory references are to the Penal Code.

[3] All further rule references are to the California Rules of Court.

[4] [F]or example, a certificate must be obtained when a defendant claims that a plea was induced by misrepresentations of a fundamental nature [citation], or that the plea was entered at a time when the defendant was mentally incompetent [citation]. Similarly, a certificate is required when a defendant claims that warnings regarding the effect of a guilty plea on the right to appeal were inadequate. (People v. Panizzon, supra, 13 Cal.4th at p. 76.) Additionally, a defendant who has filed a motion to withdraw a plea of guilty that has been denied by the trial court still must secure a certificate of probable cause in order to challenge on appeal the validity of the guilty plea. (In re Chavez, supra, 30 Cal.4th at p. 651.) And,  a challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself. Therefore, it [is] incumbent upon [such a] defendant to seek and obtain a probable cause certificate in order to attack the sentence on appeal.  (Id., fn. 3, quoting from People v. Panizzon, supra, at p. 79.)

[5] We also reject defendants suggestion that his appeal should not be barred because his attorneys failure to obtain a certificate of probable cause is itself ineffective assistance. The record does not contain any information regarding the circumstances that led defendants attorney to file a notice of appeal but not a statement of reasons under section 1237.5 in order to obtain a certificate of probable cause.  When a defendant makes an ineffectiveness claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record sheds no light on why counsel acted or failed to act in the manner challenged, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation [citation], the contention must be rejected.  (People v. Kelly, supra, 1 Cal.4th at p. 520.)