P. v. Solano

Filed 8/30/07 P. v. Solano CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sutter)

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Following consolidation of two matters pending against him, defendant entered a negotiated plea of no contest to two counts of robbery (Pen. Code,  211) and admitted use of a firearm in connection with one of the offenses (Pen. Code,  12022.53, subd. (b)). All other charges were dismissed in the interest of justice. Defendant was sentenced to a stipulated term of 14 years in state prison. He appeals, contending the trial court erred in denying his motion for continuance and granting the Peoples motion to consolidate. We conclude defendants contentions are not cognizable on appeal and affirm the judgment.

Facts and Proceedings

In light of the issues raised on appeal, a detailed recitation of the facts is unnecessary.

On April 9, 2005, defendant and others entered A.C.s residence while he slept and held him at gunpoint while they stole two firearms from a nearby storage shed. The following day, defendant and others forced their way into the home of S.M. and his wife, held them at gunpoint, and stole several items, including the couples wallets and a cell phone.

In case No. CRF050925, defendant was charged in connection with the April 9 incident. In case No. CRF050940, he was charged on the April 10 incident.

On October 25, 2005, the trial court granted the Peoples motion to consolidate these two matters.

On November 14, the People filed an amended information, charging defendant on the April 9 incident with two counts of kidnapping (Pen. Code,  207, subd. (a), and 209, subd. (b)(1)) and one count each of robbery, burglary (Pen. Code,  459), and taking a firearm without permission (Pen. Code,  487, subd. (d)(2)). On the April 10 incident, defendant was charged with two counts of robbery and one count each of burglary and dissuading a witness (Pen. Code,  136.1, subd. (c)(1)). He was also charged with personal use of a firearm in connection with each of the robberies.

On November 29, defendant moved for a continuance, arguing his counsel had not had a sufficient opportunity to review the discovery provided by the People or investigate the charges against defendant. The motion was denied.

On December 2, defendant entered his negotiated plea as described earlier.

Defendant was sentenced on January 26, 2006. On February 27, he submitted a notice of appeal and statement of probable cause. The trial court denied the request for a certificate of probable cause and the appeal was deemed inoperable.

On March 14, defendant submitted a second notice of appeal and request for certificate of probable cause. The trial court again denied the certificate of probable cause and the appeal was again deemed inoperable.

On March 24, defendant filed a notice of appeal indicating the appeal is based on the sentence imposed or other matters occurring after the plea.

Discussion

Despite the statement in defendants notice of appeal that his appeal is based on the sentence or matters occurring after the plea, defendants contentions on appeal are limited to rulings by the trial court prior to his plea. Defendant contends the court erred in denying his motion for continuance and in granting the Peoples motion to consolidate, both of which predated his nolo contendere plea.

Penal Code section 1237.5 reads: 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 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 with the clerk of the court.

Defendant did not obtain a certificate of probable cause. But even if he had, such certificate would not have enlarged the issues cognizable on this appeal.

A guilty plea amounts to an admission of every element of the offense charged and constitutes a conclusive admission of guilt. (People v. Turner (1985) 171 Cal.App.3d 116, 125.) It also waives any irregularity in the proceedings leading up to the plea. (Id. at p. 126.) A defendant thereafter can raise only those questions which go to the power of the state to try him despite his guilt. (Ibid.) All claimed errors arising prior to the plea are forfeited unless based on reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. (People v. Shults (1984) 151 Cal.App.3d 714, 718-719.) The legal effect of a nolo contendere plea is the same as a guilty plea. (Pen. Code,  1016, subd. (3).)

A denial of a motion for continuance prior to the plea does not go to the legality of the proceedings. (People v. Kaanehe (1977) 19 Cal.3d 1, 8-9.) Defendant sought a continuance in order to prepare his case for trial. However, his nolo contendere plea was a conclusive admission of guilt.

The grant of the Peoples motion to consolidate also did not go to the legality of the proceedings. Defendant claims consolidation permitted the People to prove a weak case through evidence of a stronger one. However, this is a matter of the sufficiency of evidence of guilt. Defendants plea admitted the sufficiency of the evidence against him.

Defendants appeal raises no issues cognizable on appeal from his nolo contendere plea.

Disposition

The judgment is affirmed.

HULL, J.

We concur:

BLEASE , Acting P.J.

BUTZ , J.

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