P. v. Price

Filed 8/29/06 P. v. Price CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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A jury convicted defendant William Henry Price of felonious petty theft and found he had a prior serious felony conviction within the meaning of the “three strikes law” and had served two prior separate prison terms. He was sentenced to prison for a term of eight years.

Defendant appealed, and this court affirmed the judgment. The remittitur issued on July 19, 2005. (People v. Price (April 20, 2005, C043678) [unpub. opn.].)

In October 2005, defendant, acting in propria persona, filed motions in the trial court to set aside the information in this case, to traverse the search warrant, and to suppress the evidence. The record on appeal includes the following response by a deputy clerk of Butte County Superior Court: “The court has received your notice of motion to renew motion to suppress evidence and your notice of motion to set aside information. At this time, Judge James Reilley has denied these requests.”

Defendant now purports to appeal from this purported order after judgment (Pen. Code, § 1237, subd. (b)).

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and asks us to review the record and to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.

Defendant filed a supplemental brief, arguing the merits of the motions that he filed in October 2005.

Having issued an order to show cause why the appeal should not be dismissed, we will dismiss the appeal for the following reasons.

The order denying defendant’s postjudgment motions is not appealable because the motions sought to “‘bypass or duplicate [defendant’s earlier] appeal from the judgment itself.’” (People v. Totari (2002) 28 Cal.4th 876, 882; see also People v. Gallardo (2000) 77 Cal.App.4th 971 980-981; People v. Thomas (1959) 52 Cal.2d 521, 527; People v. Carkeek (1939) 35 Cal.App.2d 499, 503-506.) “Although [Penal Code] section 1237, subdivision (b), literally permits an appeal from any postjudgment order that affects the ‘substantial rights’ of the defendant, the right to appeal is limited by the qualification that, ordinarily, no appeal lies from an order denying a motion to vacate a judgment of conviction on a ground which could have been reviewed on appeal from the judgment. [Citation.] ‘In such a situation appeal from the judgment is an adequate remedy; allowance of an appeal from the order denying the motion to vacate would virtually give defendant two appeals from the same ruling and, since there is no time limit[] within which the motion may be made, would in effect indefinitely extend the time for appeal from the judgment. [Citation.]’” (People v. Totari, supra, 28 Cal.4th at p. 882.)

Defendant’s appellate counsel argues this rule of nonappealability should not be applied in this case.

First, he suggests defendant’s postjudgment motion raised “the important issue whether double hearsay is admissible at a preliminary examination” and, thus, this appeal should fall within an exception from the rule of nonappealability “when clarification of the law is deemed important in the court’s discretion [citations].” (People v. Totari, supra, 28 Cal.4th at p. 882.) However, the record of defendant’s prior appeal shows the matter to which appellate counsel refers was presented in the trial court prior to the first appeal and, thus, there is no need for clarification of the law.

Second, he asserts the decisions cited above did not “involve[] the type of motions filed by [defendant]” and thus the decisions are “inapposite.” We disagree. Each of those cases involved a motion seeking to undo a judgment. (People v. Thomas, supra, 52 Cal.2d at p. 524 [motion to vacate]; People v. Gallardo, supra, 77 Cal.App.4th at p. 975 [motion to strike portions of judgment and to reconsider]; People v. Carkeek, supra, 35 Cal.App.2d at p. 500 [motion to set aside a judgment]). Likewise, defendant’s motions to traverse the search warrant, to suppress the evidence, and to set aside the information, all sought to undo the judgment against him.

Third, he argues that defendant’s motions reflect a denial of due process and, thus, the nonappealability rule should not apply because “[d]ismissing [defendant’s] appeal will unnecessarily result in an injustice.” Again, we disagree.

Defendant’s motion to suppress filed on October 14, 2005, identified the following evidence as the subjects of the motion: “All video recorded observations on CCTV (tape) by security Michael J. Jellison made during the allege[d] crime (theft) of [sic] the defendant on 11/16/02 or all articles, things, documents, and papers seized pursuant to warrantless search no. 02-4320, dated 11/16/02 and executed on 11/16/02, at Oroville, CA 95966 Police Dept.”

On January 27, 2003, defendant filed a motion to suppress evidence, stated no grounds, and argued about the sufficiency and admissibility of evidence at the preliminary hearing. The trial court treated the motion as supplemental points and authorities for defendant’s motion to dismiss or set aside. A motion to traverse apparently was not previously filed. The facts underlying the offense of felonious petty theft suggest there was no affidavit in support of a warrant, let alone a warrant. “An eyewitness saw defendant shoplift liquor from a store and the police caught him nearby shortly thereafter.” (People v. Price, supra, C043678.) When confronted by the store employee, defendant tossed the liquor bottles as he ran away. When police caught him, defendant was holding a shirt he had been wearing which was part of the description of the suspect. The employee identified defendant at an in-field showup. A store videotape was not usable. (Ibid.)

None of the exceptions to the nonappealability rule applies, and “[i]n the circumstance of a silent record, ‘an appeal from the judgment would have afforded no relief for it would not have brought up a record showing the error of which defendant complained.’ [Citation.]” (People v. Totari, supra, 28 Cal.4th at p. 882.) Defendant had the opportunity on his prior appeal of the judgment to challenge the trial court’s rulings. To give him the opportunity again would grant him the right to two appeals from the same judgment.

DISPOSITION

The appeal is dismissed.

SCOTLAND , P.J.

We concur:

NICHOLSON , J.

RAYE , J.

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