Fear Not Law Articles: PEOPLE v. MCEWAN

^{PEOPLE v. MCEWAN}

^Filed^1/30/07

^{CERTIFIED FOR PUBLICATION}

^{IN THE COURT OF APPEAL OF THE STATE OF}^CALIFORNIA

^{SECOND APPELLATE DISTRICT}

^{DIVISION FIVE}

^{THE PEOPLE,}

^{Plaintiff and Respondent,}

^v.

^{BRIAN MCEWAN,}

^{Defendant and Appellant.}

^B193724

⁽^{Los Angeles}^County^Super.^Ct.

^{No. YA063761)}

^{APPEAL from a judgment of the Superior Court of Los Angeles County. Eric C. Taylor, Judge. Dismissed.}

^{Sharon Fleming, under appointment by the Court of Appeal, for Defendant and Appellant.}

^{Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Elaine F. Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.}

^{________________________________}

An appeal following a guilty or no contest plea which challenges the validity of the plea is not operative unless the defendant obtains a certificate of probable cause pursuant to Penal Code section 1237.5.^{^[1]} Defendant and appellant Brian McEwan filed a notice of appeal purporting to challenge the validity of his plea of no contest to two counts of resisting an executive officer in violation of section 69, but his request for a certificate of probable cause was denied. Defendant seeks to avoid dismissal under section 1237.5 by filing an application urging this court to construe or amend the notice of appeal to include a noncertificate ground--in this case, that the appeal is based on matters occurring after the plea. The application to amend or construe the notice of appeal to include a noncertificate ground is denied, as defendant has not established good cause to support the application. The appeal is dismissed due to the lack of a certificate of probable cause.

PROCEDURAL HISTORY

Following defendant's plea of no contest, sentence was imposed in accordance with an agreed upon case disposition. Defendant was sentenced to three years in state prison, execution of sentence was suspended, and defendant was placed on three years of formal probation with a waiver of his custody credits. Defendant signed and filed a notice of appeal on Judicial Council Approved Form CR-120 (new July 1, 1999). A check mark was placed in a box on the notice of appeal indicating the appeal was from a guilty or no contest plea, and another check was placed in the box stating â€

Description	Trial court had no jurisdiction to consider appeal by defendant who pled no contest where no certificate of probable cause was obtained, notice of appeal attacked validity of plea and did not state intent to appeal on any grounds not requiring a certificate of probable cause, and defendant's motion to construe appeal as addressing noncertificate grounds was not supported by a declaration from defendant, trial counsel, or counsel for defendant on appeal.
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