P. v. Vela

Filed 8/14/07 P. v. Vela CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Carol S. Koppel, Judge. (Retired judge of the San Bernardino Mun. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.) Dismissed.

Anna M. Jauregui, under appointment by the Court of Appeal, and Howard C. Cohen, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, Alana Cohen Butler and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Irene Marie Vela was charged with transportation of methamphetamine under Health and Safety Code section 11379, subdivision (a) (count 1); possession of methamphetamine under Health and Safety Code section 11377, subdivision (a) (count 2); possession of drug paraphernalia under Health and Safety Code section 11364 (count 3); and being under the influence of a controlled substance under Health and Safety Code, section 11550, subdivision (a) (count 4).

After the trial court denied defendants motion to suppress evidence under Penal Code section 1538.5, defendant pleaded guilty to transportation of methamphetamine (count 1) in exchange for a dismissal of the remaining charges and sentencing under Proposition 36.

On appeal, defendant contends that the trial court erred in imposing certain fees and costs as conditions of her probation. The People contend that the appeal must be dismissed because defendant failed to obtain a certificate of probable cause. We conclude that defendants failure to obtain a certificate of probable cause requires that the appeal be dismissed.

I

FACTUAL BACKGROUND^[1]

On March 24, 2006, defendant, who was driving a car, was stopped by Officer Quillen for a possible registration violation. When the officer approached defendant, he asked for her drivers license. The officer also asked if defendant had anything illegal in her possession. Defendant nodded and started crying; she stated that she had a pipe. Upon further inquiry, defendant admitted that she had used methamphetamine that morning. Officer Quillen searched defendant; he found a pipe and a baggie containing methamphetamine in her pocket.

II

ANALYSIS

Defendant contends that the trial court erred in imposing a $110 booking fee, a $96 fee for attorney fees, and $252 for costs of probation supervision because probation costs and attorneys fees may not be structured as conditions of probation. The People contend that defendants failure to obtain a certificate of probable cause, as required under Penal Code section 1237.5 for the appeal from a guilty plea, requires dismissal of defendants appeal. We agree with the People.

Under Penal Code section 1237.5 and California Rules of Court, rule 8.304(b),^[2]a defendant may appeal from a judgment entered on a guilty plea only if he or she obtains a certificate of probable cause or raises an issue that does not require a certificate. Only two types of issues do not require a certificate: (1) search and seizure issues for which appeal is provided under Penal Code section1538.5, and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. (People v. Buttram (2003) 30 Cal.4th 773, 780.)

When a defendant has failed to comply with the requirements of Penal Code section 1237.5, the Court of Appeal generally may not proceed to the merits of the appeal, but must order dismissal . . . . (People v. Mendez (1999) 19 Cal.4th 1084, 1096, 1099; see also People v. Panizzon (1996) 13 Cal.4th 68, 75.)

In this case, the first exception to the requirement of obtaining a certificate of probable cause does not apply â€‘‑ an appeal arising from search and seizure issues. Here, although defendants notice of appeal stated that the appeal would be based on the denial of her motion to suppress evidence, defendant did not pursue this issue in her briefs on appeal. Had defendant raised this issue, she would not have had to obtain a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b)(4)(A).) However, even if defendant raised this issue on appeal, defendant would still need to obtain a certificate of probable cause to appeal other issues, i.e., the imposition of costs and fees to which she agreed. (Cal. Rules of Court, rule 8.304, subd. (b)(5).) For example, a defendant who has filed a motion to withdraw a guilty plea 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 (2003) 30 Cal.4th 643, 651; In re Brown (1973) 9 Cal.3d 679, 682-683.)

As to the second exception, defendant argues that she was not required to obtain a certificate of probable cause because [t]he guilty plea form did not incorporate by reference into the plea bargain the specific, challenged fee and costs that were subsequently ordered[;] and (2) at the guilty plea hearing, there was no discussion, no explanation, and no verbal acknowledgment or agreement on the record that the specific fee and costs were part and parcel with the plea bargain. We disagree with defendants interpretation of the record.

Here, in the felony plea form, which was signed by defendant on September 14, 2006, defendant agreed that her guilty plea was conditional on receiving the following considerations as to sentence: [] . . . [] b) The custody term will be Prop 36 . . . . The Proposition 36 form that defendant signed on the same date included $96 in attorneys fees, $252 in probation supervision costs, a $110 booking fee, and a $158 drug laboratory fee. At the guilty plea hearing, the trial court specifically asked defendant if she had read and signed the felony plea form, which refers to Proposition 36. Defendant responded, Yes. After defendant pleaded guilty, the trial court ordered as follows:

[Defendant] shall be placed on three years formal felony probation on the following terms and conditions: . . . That she pay a booking fee in the amount of $110. Drug fees here are higher, drug education fee of $158. Attorneys fees in the sum of $96. Court security fee of $20. Restitution fine in the amount of $200. Pay the appropriate costs of probation supervision, set as $252, modified.

Thereafter, the court asked defendant, [D]o you understand and agree with all these terms and conditions of your three-year formal felony probation? Defendant responded, Yes. Defendant never raised any objections to this pronouncement indicating that she had not agreed to pay such fees and costs in her plea agreement.

Thus, when defendant agreed to enter a guilty plea, she agreed that she would be ordered to pay the fees and costs discussed above. Issues relating to the validity of a plea require compliance with Penal Code section 1237.5. As the Supreme Court stated: [C]ourts must look to the substance of the appeal: the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made. [Citation.] (People v. Panizzon, supra, 13 Cal.4th at p. 76.) Defendant is challenging the very sentence, which imposed certain fees and costs, that she negotiated as part of the plea agreement; thus, she attacks an integral part of the plea. The attack is, in substance, a challenge to the validity of the plea, which requires compliance with the probable cause certificate requirements of Penal Code section 1237.5 and California Rules of Court, rule 8.304(b). (People v. Mendez, supra, 19 Cal.4th at pp. 1094-1099; Panizzon, at pp. 76, 79, 89.) In view of the foregoing, in the absence of a certificate of probable cause, the appeal must be dismissed.

III

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

McKINSTER

J.

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^[1] Because defendant pleaded guilty, the facts are taken from the preliminary hearing transcript. These same facts were presented to the trial court for purposes of the motion to suppress.

^[2] Formerly California Rules of Court, rule 30(b), renumbered effective January 1, 2007.