P. v. House

Filed 4/3/07 P. v. House CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Gregory T. Fain, Judge.

Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer , Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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In Fresno County Superior Court case No. F05906506-1 (case No. 506-1), appellant Kirk House pleaded no contest to felony embezzlement (Pen. Code, 503).^[1] Appellant subsequently moved to withdraw his plea, and the court denied the motion. Based on that plea, the court found appellant guilty of the offense and, further, that he was in violation of probation granted in a previous case, Fresno County Superior Court case No. F04900752-7 (case No. 752-7), in which appellant had been convicted of petty theft after having suffered a prior theft-related conviction ( 666). In each case, the court imposed a two-year term and ordered that the terms run concurrently. The court reserved the issue of restitution.

Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (Peoplev.Wende (1979) 25 Cal.3d 436.) Appellant himself, in response to this courts invitation to supplemental briefing, has submitted a brief in which he argues, as best we can determine, that the court erred in denying appellants motion to withdraw his plea. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Facts Case No. 506-1^[2]

Appellants 89-year-old grandmother suffers from Alzheimers Disease and moderate dementia. As a result of these conditions, she is unable to understand[] matters such a signing legal documents and the consequences involved in making such decisions. On February 25, 2005, appellant had his grandmother convey her home (the property) to him by means of a quitclaim deed and execute a power of attorney. Thereafter, appellant obtained a $15,000 loan, using the property as security for the loan, and used the proceeds of the loan to advance his own personal business without contributing to [his grandmothers] personal or financial interests. Appellants grandmother later told a police officer she did not know what a power of attorney or a quitclaim deed is, and she did not remember Mr. House asking to receive ownership of her house or acquiring a loan against her property.

Procedural Background

Appellant was charged by a criminal complaint filed September 26, 2005, with theft from an elder or dependent adult ( 368, subd. (d)), grand theft of personal property ( 487, subd. (a)), embezzlement ( 503) and attempting to dissuade a witness ( 136.1, subd. (a)(2)). On November 3, 2005, pursuant to a plea agreement, he pled no contest to embezzlement and the court dismissed the remaining counts. The parties also agreed that appellant would take certain actions prior to sentencing, including reconveying the property to the victim prior to sentencing, and that if appellant performed according to the agreement, the remaining charges would be dismissed and appellant would be placed on probation.

Appellant appeared on December 6, 2005, the date set for sentencing. He had not reconveyed the property. The court set sentencing for January 23, 2006. On that date, the court granted appellants request for a continuance and set sentencing for January 30, 2006.

On January 30, 2006, appellant appeared in court and, through counsel, indicated he wanted to withdraw his plea on various grounds, including ineffective assistance of counsel; the public defender moved to be relieved as counsel on the ground of conflict of interest; and the court granted that motion and appointed substitute counsel for appellant.

On February 27, 2006, appellant, represented by new counsel, filed a motion to withdraw his plea. On March 2, 2006, the court denied the motion and imposed sentence as set forth above.

On April 21, 2006, appellant filed a notice of appeal. In that notice, he requested that the court issue a certificate of probable cause ( 1237.5). The court denied that request.

DISCUSSION

As indicated above, appellant has filed a supplemental brief in which he argues the court erred in denying his motion to withdraw his plea, and therefore reversal is required. However, as is also indicated above, the trial court denied appellants request for a certificate of probable cause. Absent a certificate of probable cause, a defendant cannot challenge the validity of a plea of guilty or no contest on appeal. ( 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1095.) Therefore, appellants challenge to the validity of his plea is not cognizable on this appeal.

Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.

DISPOSITION

The judgment is affirmed.

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^*Before Levy, Acting P.J., Cornell, J., and Gomes, J.

^[1] All statutory references are to the Penal Code.

^[2] The factual summary of the instant case is taken from the report of the probation officer, which is, in turn, based on a police report.