P. v. Williams
Filed 4/6/07 P. v. Williams CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. DONALD V. WILLIAMS, Defendant and Appellant. | D048031 (Super. Ct. No. SCD160798) |
APPEAL from an order of the Superior Court of San Diego County, Francis M. Devaney, Judge. Affirmed.
Donald V. Williams entered negotiated guilty pleas of grand theft (Pen. Code, 487, subd. (a)),[1]conspiracy ( 182, subd. (a)(1)), perjury ( 118, subd. (a)), and filing a false instrument ( 115, subd. (a)). The court sentenced him to prison for five years four months and ordered him to pay victim restitution of $69,465.39 to Christina Minnifield and $12,582.57 to Jesse Trujillo. Minnifield and Trujillo obtained judgments in the amounts owed them and writs of execution on funds held by the San Diego County Sheriff's Department that was a surplus after foreclosure of real property owned by Williams and his wife. Williams sought to exempt the funds from execution on the basis of a homestead exemption. The court denied the exemption on the ground that the funds were not exempt as a homestead.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as a possible but not arguable issue whether the trial court erred in denying the homestead exemption.
We granted Williams permission to file a brief on his own behalf. On August 23, 2006, we granted Williams an extension of time until September 20 to file a supplemental brief. In the request underlying the August 23 order, Williams also asked for an order staying the proceeding, an order consolidating this appeal with an appeal in a nonpublished opinion, People v. Williams (Jan. 31, 2007, D046795), appoint new counsel, and argues the trial court erred in denying his homestead exemption motion in his absence and that he did not understand the plea agreement he entered. We denied the request to stay the proceeding, to consolidate appeals, and to appoint new counsel. The request to consolidate the appeals was denied because the issues in the two appeals are separate and distinct and consolidation would not further judicial economy.[2] The request for appointment of new counsel was denied because Williams stated no reason to replace counsel. As noted above, Williams claims the trial court erred by denying his homestead motion in his absence. The burden of proving entitlement to a homestead exemption is on the claimant. (Code of Civ. Proc., 703.580, subd. (b).) Code of Civil Procedure section 704.710, subdivision (c) provides in pertinent part:
" 'Homestead' means the principal dwelling (1) in which the judgment debtor or the judgment debtor's spouse resided on the date the judgment creditor's lien attached to the dwelling, and (2) in which the judgment debtor or the judgment debtor's spouse resided continuously thereafter until the date of the court determination that the dwelling is a homestead. . . ."
Before Williams sought to exempt his former home as a homestead, the home had been foreclosed upon and sold at a sheriff's sale and Williams had been sentenced to prison. In the trial court, Williams claimed that he was only temporarily in prison and only temporarily not residing in the home. However, the home was foreclosed upon before he was incarcerated. Having not proved that he resided in the home on which he claimed the homestead exemption at the time Minnifield and Trujillo obtained their judgments and at the time the court ruled on the claimed homestead exemption, Williams has not carried the burden of showing he was entitled to claim a homestead exemption. Williams has failed to state how the result would have been different had he been present at the hearing on the claimed homestead exemption.
In the request for an extension of time underlying the August 23 order granting the extension, Williams also claimed he did not understand the plea bargain he entered because he was taking medication. The record contains no information regarding this claim. When reviewing an appeal we are limited to the record before us. (People v. Jackson (1964) 230 Cal.App.2d 485, 490; People v. Roberts (1963) 213 Cal.App.2d 387, 394.) In any case, the claim is not timely. The abstract of judgment resulting from the plea agreement was issued on February 7, 2005. Williams filed his notice of appeal in the case under consideration, D048031, on January 27, 2006. In a criminal case, appeal of the conviction must be filed within a maximum of 180 days after entry of judgment. (Cal. Rules of Court, rule 8.104(a)(3).) Additionally, the trial court denied a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).) Absent a certificate of probable cause, a defendant cannot challenge the validity of a guilty plea on appeal. ( 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1095.)
On October 30, 2006, this court granted Williams a third extension of time, until February 20, 2007, to file a supplemental brief. Williams has not filed a brief since the third extension was granted. A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issue referred to pursuant to Anders v. California, supra, 386 U.S. 738, and the issues Williams raised has disclosed no reasonably arguable appellate issue. Competent counsel has represented Williams on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
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[1] All statutory references are to the Penal Code unless otherwise specified.
[2] In People v. Williams, supra, D046795, Williams challenged a victim restitution order and award of attorney's fees to the victim. Here, Williams challenges denial of his request to exempt funds from execution on the basis of a homestead exemption.
