P. v. Robles

Filed 8/20/07 P. v. Robles CA2/6

Opinion following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Juan Robles attempts to appeal from a carjacking conviction following a negotiated plea in which he was sentenced to three years state prison. (Pen. Code,  215.)[1] Before sentencing, appellant moved to withdraw the plea (Pen. Code,  1018) after his friend and codefendant told the police that appellant "had nothing to do with this." The trial court denied the motion and denied appellant's request for a certificate of probable cause. ( 1237.5.)

Robles appealed and filed a petition for writ of mandate. In our previous unpublished opinion, a majority of the court issued a peremptory writ and reversed the judgment with directions to grant the motion to withdraw the guilty plea. The People successfully petitioned for rehearing.

On rehearing, we deny the petition for writ of mandate. Without a certificate of probable cause, the appeal must be dismissed. (People v. Panizzon (1996) 13 Cal.4th 68, 89-90; In re Brown (1973) 9 Cal.3d 679, 683.)

Facts & Procedural History

On March 16, 2006, appellant and his friend, Eloy Valencia, talked to the victim in a bar. Appellant and Valencia were in the parking lot when the victim backed out of a parking spot. Appellant drove up and stopped within two feet of the victim's truck. Appellant's passenger, Valencia, got out, threatened the victim with appellant's BB gun and commandeered the victim's truck. Appellant was laughing and followed closely behind as Valencia drove the truck out of the parking lot to another bar.

Valencia abandoned the truck and was driven home by appellant. Minutes later, the police stopped appellant. They found the BB gun inside the center console of his car. Appellant falsely told the police he had been at his girlfriend's house the last couple of hours.

In a second interview, appellant admitted that he was at the scene of the carjacking but was only "trying to get his friend . . . out of trouble." Appellant claimed that Valencia, acting on impulse, assaulted the victim and took the truck as a gag.[2]

Appellant's account of the carjacking was at variance with the victim's statement and the statement of a second victim/witness. When appellant was confronted with the victim statements, appellant admitted that the victims were telling the truth.

Appellant was arraigned March 20, 2006 and represented by the public defender. Appellant was advised that that if he went to trial and was convicted he could serve five to nine years. Based on his attorney's advice, appellant waived preliminary hearing and entered a negotiated plea for three year low term.

Valencia was arrested the next day and told the police that appellant "had nothing to do with it." Upon learning of Valencia's statement, appellant retained new counsel and moved to withdraw the plea. The trial court found that appellant had freely, intelligently, and knowingly waived his constitutional rights and agreed to the plea. As indicated, it denied the motion to withdraw the guilty plea and the request for a certificate of probably cause.

Appellate Proceedings

Before oral argument, this court issued notice advising the parties of our intention to issue a preemptory writ directing the trial court to vacate its order and to enter an order granting the request for a certificate of probable cause. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171.) In our previous unpublished opinion, a majority of the court concluded that the trial court erred in not issuing a certificate of probable cause and reversed with directions to grant appellant's motion to withdraw the plea.

On rehearing and reexamination of the procedural posture of the case, the court now admits to a jurisdictional error. In these circumstances, a court may not issue a peremptory writ and determine the merits of the criminal appeal as if the certificate of probable cause had issued. (Code Civ. Proc.,  1087, 1088; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240-1421.) A peremptory writ is always directed to the lower court and may only issue after the appellate court has entered an order. (Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d at p. 181; Ng v. Superior Court (1992) 4 Cal.4th 29, 34; see 8 Witkin, Cal. Procedure, Extraordinary Writs (4th ed. 1997)  230, p. 1024 ["a judgment or order directing that the writ issue must be entered before the writ may be issued"].) "A Court of Appeal lacks authority either to issue a peremptory writ without prior entry of an order directing its issuance or to make such an order final forthwith, thereby to permit the immediate issuance of the writ itself without opportunity for review of the order by [the California Supreme Court]." (Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d at p. 182.)

Here, no order was entered and the peremptory writ and appeal were combined as if the matters had been consolidated.[3] The peremptory writ/opinion "was a hybrid, unknown to jurisprudential taxonomy." (Id., at p. 182.) To unscramble the egg, we first address the writ petition. (In re Brown, supra, 9 Cal.3d at p. 683.)

The writ petition fails to show that that the trial court abused its discretion in denying the certificate of probable cause. (People v. Holland (1978) 23 Cal.3d 77, 84.) Although appellant did not drive the victim's truck, he did aid and abet a carjacking. Appellant stopped next to the victim so that Valencia could jump out and surprise him with appellant's BB gun. Valencia pointed the weapon at the victim and said: "Get out of the car mother fucker." Appellant laughed at the victims, helped Valencia's escape, and lied to the police.

The day after the change of plea, appellant learned of Valencia's arrest and statement, and was advised by counsel that the statement would not exonerate him. The public defendant told appellant that even with Valencia's statement, appellant still faced a maximum sentence of nine years state prison. It was sound advice. Appellant was not duped or misled by anyone. In the words of the trial court, "defendant knew, and told the court, that he was with the co-defendant at time of the incident and that he was involved in the crime alleged." ~(CT 54)~

Mistake, ignorance, or some other factor overcoming the defendant's exercise of free judgment is grounds for withdrawing a guilty plea, but it is a rare occurrence. (People v. Cruz (1974) 12 Cal.3d 562, 566.) "[G]ood cause must be shown by clear and convincing evidence. [Citations.]" (Ibid.)

In People v. Ramirez (2006) 141 Cal.App.4th 1501 (Ramirez), the prosecution failed to turn over a supplemental police report containing a witness statement that another person committed the carjacking and that defendant was innocent. The prosecution had ample time to furnish the report before the change of plea.

The trial court in Ramirez denied a motion to withdraw the plea but found the discovery omission was egregious enough to issue a certificate of probable cause. ( 1237.5.) On review, the Court of Appeal vacated the guilty plea because "[the] supplemental report identified new defense witnesses, potentially reduced appellant's custody exposure, and provided possible defenses to several charges, thereby casting the case against him in an entirely different light. Appellant suffered prejudice by his ignorance because earlier discovery of the report would have affected his decision to enter a plea before the preliminary hearing." (Id., at p. 1508.)

Unlike Ramirez, no witness statements or exculpatory evidence was withheld by the prosecution. The day after appellant plead guilty, Valencia told the police that appellant "had nothing to do with this." This fortuitous occurrence did not impeach the negotiated plea, entered upon the advice of counsel, and accepted by the superior court. Valencia's extrajudicial statement was not admissible and did not require the vacation of a guilty plea.

Over 20 years ago, this court said In People v. Hunt (1985) 174 Cal.App.3d 95, 103: "Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged. [Citations.]" The rule is especially apposite where, as here, the evidence of guilt is strong and the defendant admits that the victims are telling the truth. A criminal defendant may not "enter a plea of guilty confident that if by some fortuitous circumstance his chances of an acquittal are substantially improved, he may thereafter withdraw his guilty plea as of right. [Citation.]" (People v. Caruso (1959) 174 Cal.App.2d 624, 642.)

The writ petition fails to show that the issue appellant seeks to raise on appeal involves "reasonable constitutional, jurisdiction, or other grounds going to the legality of the proceedings." ( 1237.5, subd. (a); People v. Hoffard (1995) 10 Cal.4th 1170, 1177-1178.) We may not treat the appeal as a writ of habeas corpus. (In re Chavez (2003) 30 Cal.4th 643, 651.)

In B194071, the petition for writ of mandate must be, and is, denied. Without a certificate of probable cause, the appeal (B192816) is inoperative and must be dismissed. (People v. Panizzon, supra, 13 Cal.4th at pp. 89-90; People v. Mendez (1999) 19 Cal.4th 1084, 1095.)

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

Carol C. Koppel, Judge

Superior Court County of Los Angeles

______________________________

Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant and Petitioner.

Edmund G. Brown, Jr., Bill Lockyer, Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Taylor Nguyen, Deputy Attorney General, for Plaintiff and Respondent and Real Party in Interest.

No appearance for Respondent Superior Court of Los Angeles County

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[1] All statutory references are to the Penal Code unless otherwise stated.

[2] This spontaneous "lark of his own" defense seems unlikely. Just how Valencia came into possession of appellant's gun to accomplish the car jacking is not explained. There is another inference that may be drawn, i.e. Valencia and appellant conspired to do the carjacking and were lying in wait for the victim to leave the bar.

[3] The writ petition and appeal were consolidated June 29, 2007 on the court's own motion, after rehearing was granted.