Filed 4/27/21 P. v. Vanegas CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. David R. Zulfa, Judge.

Travis McKinley Poteat for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Marvin Vanegas was charged by criminal complaint with two felonies, forgery and burglary (Pen. Code, §§ 470, subd. (a) & 460, subd. (b)). Less than two months after his arraignment on the complaint he settled the charges by pleading no contest to an amended count of misdemeanor forgery; the burglary count was dismissed.

Nearly 15 years later, Vanegas moved to vacate the plea in this case. The motion was ultimately denied and Vanegas filed a notice of appeal.

The appeal was directed to this court. We subsequently sent a letter to each party declaring a belief we lacked jurisdiction to consider the appeal because the instant matter is a misdemeanor rather than a felony. The People filed a response in agreement with our belief. Vanegas likewise agrees this court lacks jurisdiction but urges us to exercise our power to transfer the appeal. (See § 1471; Cal. Rules of Court, rule 8.1008.) We decline the invitation and will transfer the appeal to the superior court.

DISCUSSION

“A Court of Appeal has appellate jurisdiction over appealable orders from ‘felony case[s].’ (Pen. Code, § 1235, subd. (a); Cal. Const., art. VI, § 11.) The appellate divisions of the superior courts, by contrast, have appellate jurisdiction over appealable orders from ‘misdemeanor case[s].’ ([Pen. Code,] § 1466; Cal. Const., art. VI, § 11.)” (People v. Nickerson (2005) 128 Cal.App.4th 33, 36 (Nickerson).)

There is no felony case “until an information or indictment is filed or a complaint is certified to the superior court pursuant to [Penal Code] section 859a.” (Nickerson, supra, 128 Cal.App.4th at p. 38.) Those events did not occur in this case. “The resulting case is thus a misdemeanor case and appellate jurisdiction belongs in the appellate division of the superior court.” (Ibid.)

DISPOSITION

The appeal is transferred to the Kern County Superior Court Appellate Division. (Gov. Code, § 68915.) The remittitur shall issue forthwith and the Clerk/Executive Officer is directed to transfer the file to the superior court immediately.

* Before Franson, Acting P.J., Smith, J. and Snauffer, J.