Filed 6/23/17 P. v. Aber CA4/3








NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,

Plaintiff and Respondent,

v.

DYLAN MICHAEL ABER,

Defendant and Appellant.


G054054

(Super. Ct. No. 15CF0368)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Craig E. Robinson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Cindi B. Mishkin, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
* * *

There is not much here to discuss. Appellant Dylan Michael Aber entered into a plea agreement whereby he pled guilty to possession of marijuana for sale (Health & Saf. Code, § 11359) in February of 2015. He was placed on probation for three years with typical terms and conditions.
Eight months later he was accused of violating probation. He admitted the violation and his probation was revoked and reinstated; he was ordered to serve 80 days in the county jail. Two months later he was again accused of violating probation. Again he admitted the violation and was incarcerated as a result. Five months later the same thing happened, with the same result. Two months after that, it happened again. This time the court revoked and terminated probation and he was sentenced to prison. He appealed.
We appointed counsel to represent Aber on appeal. Appellate counsel considered several possible appellate arguments, but could not make any of them fly. There was simply nothing to complain about. She therefore filed with this court a Wende brief (People v. Wende (1979) 25 Cal.3d 436), complying with Anders v. California (1967) 386 U.S. 738, by setting forth the procedural facts of the case and the allegation he admitted as a violation: that he had possessed two kitchen knives and a machete (clear violations of his probationary grant). She also set out the possible arguments she had investigated and abandoned. We have reviewed the points she considered and examined the record for others. We find ourselves in agreement with her that there is no arguable issue on appeal.
Counsel’s ability to argue in appellant’s favor was greatly constricted by the procedural posture of the case. Defendant having pled guilty, any challenge to his original conviction could not have gone anywhere because no certificate of probable cause had been obtained. Appellant has not suggested, his attorney could not conceive of, and we cannot imagine a way around that requirement on the facts of this case. “A defendant who has pleaded guilty or nolo contendere to a charge in the superior court, and who seeks to take an appeal from a judgment of conviction entered thereon, may not obtain review of so-called ‘certificate’ issues, that is, questions going to the legality of the proceedings, including the validity of his plea, unless he has complied with section 1237.5 of the Penal Code and the first paragraph of rule 31(d) of the California Rules of Court – which require him to file in the superior court a statement of certificate grounds as an intended notice of appeal within 60 days after rendition of judgment, and to obtain from the superior court a certificate of probable cause for the appeal within 20 days after filing of the statement and, hence, within a maximum of 80 days after rendition of judgment.” (People v. Mendez (1999) 19 Cal.4th 1084, 1088, fns. omitted.) Appellant having failed to do so – and in our opinion, being unable to do so, there being no grounds therefore – he is precluded from such a challenge and appellate counsel correctly abandoned that as a ground of appeal.
In fact, without a certificate of probable cause, appellant may obtain review solely of so-called “noncertificate” issues. These are “postplea questions not challenging his plea’s validity and/or questions involving a search or seizure whose lawfulness was contested pursuant to [Penal Code] section 1538.5[.]” (People v. Mendez, supra, 19 Cal.4th at p. 1088.)
This is not a meaningless formality. The certificate of probable cause is designed for situations in which valid, contestable legal issues exist but a party, for whatever reason, wishes to plead guilty – often to take advantage of a lenient sentence such as the one appellant received. To distinguish those cases from ones in which there is no serious legal issue, we require the trial courts to screen such requests through the certificate process. The trial court, having been there when the plea was entered, is well situated to evaluate the bona fides of issues that might be raised and avoid drains upon the public fisc in pursuit of quixotic arguments.
And not only were there no grounds for a certificate of probable cause, the passage of time while the court extended opportunities to appellant to try to get his life under control, meant the certificate was no longer available.
So all appellate counsel could do was try to find fault with the proceedings in which appellant admitted his probation violation. Since appellant’s constitutional rights are very restricted in such proceedings, there is very little room to maneuver in such a challenge. In those very tight quarters, counsel could not find a way to attack appellant’s admission and neither could we.
We find appellate counsel was correct that there are no arguable issues presentable on appeal in this case. The judgment is affirmed.







BEDSWORTH, J.

WE CONCUR:





O’LEARY, P. J.





ARONSON, J.