Filed 1/25/18 P. v. Parker CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Dismissed.

Stanley B. Granville, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.

I

BACKGROUND

Steven Parker appeals his plea of guilty to all charges and allegations against him for an indicated sentence of 19 years. Parker admitted committing second degree robbery (Pen. Code, § 211; count 1) and grand theft (§ 487, subd. (d)(2); count 2).^[1] He also admitted committing both counts as a principal in a crime where another principal used a firearm (§ 12022.53, subds. (b), (e)) and for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), and admitted committing count 1 as a principal while he and another principal were armed with firearms (§ 12022, subd. (a)(1)). Finally, he admitted three prior prison convictions (§ 667.5, subd. (b)) and one prior serious felony conviction (§ 667, subd. (a)) that was also a strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).

Parker’s trial counsel filed a timely notice of appeal. However, he limited the appeal to issues related to “the sentence or other matters occurring after the plea that do not affect the validity of the plea.” As a result, counsel did not seek a certificate of probable cause indicating his intent to raise reasonable constitutional, jurisdictional, or other grounds going to the legality of the guilty plea. On the contrary, counsel affirmatively indicated there was no need to seek a certificate.

Parker retained new counsel to handle his appeal, who prepared subsequent filings in this court. In his opening brief, Parker raises issues challenging the validity of his guilty plea, not sentencing or other matters after the plea. Parker argues he received ineffective assistance when his trial counsel advised him to plead guilty, making his plea neither knowing nor voluntary. He also argues the trial court erred by denying his motion to represent himself at trial.

Approximately a week after filing his opening brief, Parker filed a petition for habeas corpus in this court (case No. E067057), which acknowledges the defects of this appeal and seeks relief on the same grounds asserted here as well as on the ground trial counsel provided ineffective assistance by failing to file a statement in support of a certificate of probable cause in the trial court.

II

DISCUSSION

The People argue we should dismiss Parker’s appeal because he did not seek and obtain a certificate of probable cause from the trial court to challenge his guilty plea. We agree the failure requires dismissal.

“A guilty plea admits every element of the crime and constitutes a conviction. [Citations.] For that reason, . . . issues going to the determination of guilt or innocence are not cognizable on appeal; review is instead limited to issues going to the jurisdiction of the court or the legality of the proceedings, including the constitutional validity of the plea.” (People v. Hoffard (1995) 10 Cal.4th 1170, 1177-1178.)

Section 1237.5 addresses the procedure for perfecting an appeal from a judgment based on a guilty plea. The statute “create[s] a mechanism for trial court determination of whether an appeal raises any nonfrivolous cognizable issue, i.e., any nonfrivolous issue going to the legality of the proceedings.” (People v. Hoffard, supra, 10 Cal.4th at p. 1179.) To that end, no appeal is permitted unless “[t]he 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” and “[t]he trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.” (§ 1237.5.) The statute aims to promote judicial economy “‘by screening out wholly frivolous guilty [and nolo contendere] plea appeals before time and money are spent’ on such matters as the preparation of the record on appeal [citation], the appointment of appellate counsel [citation], and, of course, consideration and decision of the appeal itself.” (People v. Mendez (1999) 19 Cal.4th 1084, 1095.)

Parker admits his appellate counsel did not file in the trial court a written statement showing reasonable cognizable grounds to appeal his guilty verdict. He argues we should overlook the omission and reach the merits of his appeal because the failure constituted ineffective assistance of counsel. According to Parker, he made clear his intent to appeal his guilty plea, but his attorney decided not to file a request for a certificate of probable cause. Parker points out he said he intended to appeal at the sentencing hearing and indicated he did not give up his right to appeal on the statement related to his guilty plea. He contends a certificate of probable cause should have issued if his attorney had requested one, though he does not provide a basis for reaching that conclusion.

Parker has not provided a reason to excuse the failure to obtain a certificate of probable cause. Section 1237.5’s admonition is both broad and clear. The California Supreme Court has recognized two exceptions to the requirement, but neither is at play in this case. First, a defendant may appeal from a ruling involving a search and seizure issue without obtaining a certificate because section 1538.5 explicitly authorizes it. (People v. Johnson (2009) 47 Cal.4th 668, 676-677.) Second, a defendant need not obtain a certificate prior to challenging the validity of a guilty plea where they assert only errors in post-plea proceedings to determine the degree of the crime and the penalty. (Ibid.)

Parker does not challenge his guilty plea based on a mistaken ruling on a motion to suppress. And though his notice of appeal indicates he will challenge sentencing issues, his arguments instead challenge the validity of his guilty plea. Accordingly, we will dismiss the appeal. We will address separately Parker’s habeas petition in case No. E067057.

III

DISPOSITION

We dismiss the appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

J.

We concur:

McKINSTER

Acting P. J.

MILLER

J.