THE PEOPLE v. JESUS LOPEZ (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant Jesus Lopez appeals from the judgment entered following his no contest plea to a violation of Penal Code section 288, subdivision (a), committing a lewd act upon a child under the age of 14.¹  Because he failed to obtain a certificate of probable cause from the trial court, his appeal must be dismissed.

Defendant was charged in a two-count information that alleged he violated sections 288, subdivision (a) and 288.4, subdivision (b) (meeting a minor for lewd purposes).   On January 5, 2011, he pled no contest to the section 288, subdivision (a) charge.   On the same day, pursuant to the terms of the plea agreement, the trial court suspended execution of a six-year prison term and placed defendant on probation for five years.   On January 31, defendant filed a notice of appeal.   His request for a certificate of probable cause was denied.

After reviewing the record, defendant's appellate counsel filed an opening brief and requested that this court independently review the record for appellate issues pursuant to People v. Wende (1979) 25 Cal.3d 436.   Counsel filed a declaration wherein he stated that he had reviewed the entire record on appeal and was in the process of writing a letter to defendant advising him of the nature of the brief and sending him the record on appeal.

On July 14 and July 28, 2011, this court sent letters to defendant advising that he had 30 days within which to submit any issues that he wished us to consider.   Although the letters were addressed to the location that defendant had listed in his notice of appeal, they were returned by the post office.   Apparently, defendant moved and left no forwarding address.

“Section 1237.5 states broadly that ‘[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere ․ except where both of the following are met:  [¶] (a) The 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. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.’ (§ 1237.5, italics added.)”  (People v. Johnson (2009) 47 Cal.4th 668, 676.)   There are two exceptions to section 1237.5's requirement of a certificate of probable cause.  “First, a defendant may appeal from a ruling involving a search and seizure issue without obtaining a certificate, because an appeal from such a ruling explicitly is authorized by section 1538.5 ‘notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty.’ (§ 1538.5, subd. (m);  [citation].)   Second, a defendant is ‘not required to comply with the provisions of section 1237.5 where ․ he is not attempting to challenge the validity of his plea of guilty but is asserting only that errors occurred in the subsequent adversary hearings conducted by the trial court for the purpose of determining the degree of the crime and the penalty to be imposed.’  [Citation.]”  (Id. at p. 677, fn. omitted.)

Here, defendant is not challenging the sentence or other matters that occurred after he entered his no contest plea.   Although his notice of appeal claims the appeal is based on the denial of a suppression motion brought pursuant to section 1538.5, our review of the record reveals that no such motion was filed.

We also read defendant's request for a certificate of probable cause to determine whether his statement presented any cognizable issue for appeal that would have required the trial court to issue the certificate.  (People v. Johnson, supra, 47 Cal.4th at p. 676 [“The trial court must issue the certificate if the defendant's statement under section 1237.5 presents ‘any cognizable issue for appeal which is not clearly frivolous and vexatious.’ ”].) It does not.   In his statement, defendant complains that his attorney failed to file certain motions and to adequately investigate the case.   We note that defendant did not seek to withdraw his plea.   In addition, he claims he was not advised of the consequences of his plea, specifically the requirement that he register pursuant to section 290.   He is incorrect.   A reading of the transcript of the plea reveals that the trial court thoroughly advised defendant of his constitutional rights and the consequences of entering a no contest plea.   We conclude defendant failed to set forth any reason justifying the issuance of a certificate of probable cause.

As defendant was required to obtain a certificate of probable cause to perfect his appeal and failed to do so, his appeal must be dismissed.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code..  FN1. All further statutory references are to the Penal Code.

EPSTEIN, P. J. WILLHITE, J.