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Filed 2/27/08 P. v. Gonzalez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.

ALBERTO GONZALEZ,

Defendant and Appellant.
E042128
(Super.Ct.Nos. FVI023053 &

CRA4222)

OPINION


APPEAL from the Superior Court of San Bernardino County. Stephen H. Ashworth, Judge. Dismissed.

Frederick A. Hurst, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Landendorf, Supervising Deputy Attorney General, and Kristen Kinnaird Chenelia, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Alberto Gonzalez appeals from a plea of guilty to resisting an officer and driving under the influence of alcohol. He claims he received ineffective assistance of counsel (1) in negotiating the plea agreement; (2) in pursuing a motion to withdraw his guilty plea; and (3) in perfecting his appeal to the trial court’s denial of his motion to withdraw.

FACTUAL AND PROCEDURAL HISTORY

On November 30, 2005, defendant was charged in a felony complaint with resisting an officer in violation of Penal Code section 69,1 a felony (count 1); driving under the influence of alcohol in violation of Vehicle Code section 23152, subdivision (a), a misdemeanor (count 2); and driving with a blood alcohol level greater than 0.08 percent in violation of Vehicle Code section 23152, subdivision (b), a misdemeanor (count 3). In connection with counts 2 and 3, it was also alleged defendant had a prior conviction for driving under the influence of alcohol within the meaning of Vehicle Code sections 23540 and 23546.

At the preliminary hearing on January 11, 2006, the People presented convincing evidence of defendant’s guilt of the matters charged. One of the arresting officers testified he was on patrol November 28, 2005, about 8:30 p.m., and observed a pickup truck drive off the road approximately three times. A couple of times the pickup truck returned to the road but crossed into the lane for oncoming traffic before returning to the correct lane. As a result, the officer made a routine traffic stop, and defendant yielded to the right side of the road. When the officer approached, defendant identified himself and provided the officer with a California driver’s license. The officer detected a strong odor of alcohol, bloodshot and watery eyes, and slurred speech. When the officer asked defendant if he had been drinking, defendant admitted he had consumed approximately six beers. Because the officer believed defendant was intoxicated, he asked him to step out of the pickup truck so he could conduct a field sobriety test. When defendant stepped out of the vehicle, the officer attempted to check his pupils for signs of intoxication but was unsuccessful because defendant was unable to follow the instructions.

Fearing they were standing too close to the middle of the road, the officer asked defendant to move to the side, but he refused to do so despite multiple requests by the officer. The officer then attempted to move defendant to the side of the road by grabbing his arm, but defendant pulled away and attempted to get back in the pickup truck. As a result, the officer decided to place defendant under arrest for driving under the influence. He told defendant to put his hands down behind his back. Defendant refused and twice attempted to get back into the pickup truck, but the officer pulled him away. The officer called for backup and then gave defendant several more commands to put his hands behind his back. Thereafter, the officer took defendant down to the ground and attempted to gain enough leverage to pull defendant’s hands behind his back and get him handcuffed. Defendant continued to resist, and at one point had the officer’s legs immobilized. When a second officer arrived, defendant was given several more verbal commands to put his hands behind his back but he refused. Both officers working together were finally able to place the handcuffs on defendant. Defendant continued to resist by kicking his legs at the officers. The officers wrapped defendant’s legs in a hobble to immobilize him and transported him to the jail.

Call history records indicate a nurse drew a blood sample at the jail approximately 56 minutes later, and the officer booked the labeled container of blood into an evidence locker. For purposes of the preliminary hearing only, the parties stipulated defendant’s blood alcohol level was 0.18 percent.

An information was filed on January 17, 2006, and defendant pled not guilty to all counts. On March 3, 2006, defendant entered into a plea agreement. As a result of the plea agreement, which was accepted by the court, count 1, resisting an officer, was reduced from a felony to a misdemeanor. Defendant pled guilty to that charge, as well as count 2, misdemeanor driving under the influence of alcohol, and count 3 was dismissed.

At the time of sentencing, defendant filed a motion to withdraw his guilty plea, arguing there was good cause for withdrawal because he was innocent of resisting arrest (count 1). To support his motion, defendant submitted a declaration recounting his version of the events the night he was arrested. In his declaration, defendant contends he did nothing to resist the officers, but they beat him up and told him no one would believe him because he had been drinking. Defendant was represented by new counsel at the hearing on his motion to withdraw. During the hearing, defendant’s new counsel reported to the trial court that defendant’s prior counsel told defendant, “I’m tired of dealing with you. Here, take this deal or not. I don’t care.” Counsel argued this was enough to show defendant’s will “was overcome.” The trial court disagreed, stating the real issue was whether “someone read the form with him or did he go over this form.” Counsel confirmed someone had read the change of plea form with defendant, and defendant confirmed this by initialing the boxes on the form. The trial court denied the motion and sentenced defendant to 36 months of revocable probation.

On May 9, 2006, shortly after he was sentenced, defendant filed a notice of appeal. Although the circumstances are somewhat unclear from the record, the appeal originally proceeded in the appellate division of the superior court, and was later transferred to this court. A notice of transfer dated January 11, 2007, advised defendant that the Court of Appeal has jurisdiction pursuant to section 1235 and rule 8.304 of the California Rules of Court, because defendant was originally charged with a felony.

DISCUSSION

Defendant’s first claim of ineffective assistance of counsel is that he pled guilty because of undue coercion by his original trial attorney. Defendant’s second claim of ineffective assistance of counsel is that his second trial attorney, who was appointed to represent him to pursue a motion to withdraw his guilty plea, failed to offer admissible evidence in support of the motion. Defendant’s third claim of ineffective assistance of counsel is that one or more of his attorneys failed to comply with section 1237.5 by obtaining a certificate of probable cause for appeal. He argues we should overlook this failure and consider the merits of his claims because other courts have done so under similar circumstances. Alternatively, defendant urges us to consider the merits of his claims because there are exceptional circumstances.

“When a defendant has pleaded guilty . . . to a criminal charge, the defendant may not appeal the judgment of conviction on issues ‘going to the legality of the proceedings’ unless, within 60 days of rendition of the judgment, he or she files with the trial court a written statement executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds for appeal and, within 20 days after that filing, the trial court executes and files a certificate of probable cause for appeal.” (In re Chavez (2003) 30 Cal.4th 643, 646, quoting § 1237.5.) “[I]ssues going to the validity of a plea require compliance with section 1237.5.” (People v. Panizzon (1996) 13 Cal.4th 68, 76.) For example, a certificate must be obtained if a defendant claims he was induced to enter a plea based on misrepresentations of a fundamental nature. (Ibid.) A defendant seeking review of issues going to the legality of the proceedings, including the validity of a guilty plea, must comply with section 1237.5 “fully, and, specifically, in a timely fashion.” (People v. Mendez (1999) 19 Cal.4th 1084, 1089, original italics.)

Here, strict compliance with section 1237.5 was required with respect to defendant’s first and second ineffective assistance of counsel claims. These claims (i.e., that he received ineffective assistance during plea negotiations and while pursuing his motion to withdraw) both attack the validity of his guilty plea.2 Defendant has not demonstrated compliance. Although he filed a timely notice of appeal, he did not represent his appeal was based on the validity of his plea, and he did not file a statement under penalty of perjury seeking a certificate of probable cause.

In his third and final claim of ineffective assistance of counsel, defendant argues we should consider the substance of his first two claims even though he did not comply with section 1237.5, because his failure to comply was also the result of ineffective assistance of counsel. He claims his trial counsel did not assist him in filing the notice of appeal, and he did not know a certificate of probable cause was required. Defendant further claims his appeal “was originally filed in the wrong court under the incorrect assumption that it was a misdemeanor . . . because the trial court reduced Count I from a felony to a misdemeanor.” He also represents the matter “was deemed an appeal to the [a]ppellate [d]ivision” and was “initiated as an appeal to the appellate division of the superior court where such certificates are not required.” 3

Defendant argues we should overlook his failure to comply with section 1237.5 because other courts have done so under analogous circumstances. To support his argument, defendant cites cases such as People v. Ivester (1991) 235 Cal.App.3d 328 (Ivester) and People v. Chavez (1981) 124 Cal.App.3d 215, disagreed with by Mendez, supra, 19 Cal.4th at p. 1098. Our Supreme Court in Mendez held this approach should be abandoned because it defeats the purposes of section 1237.5. The Supreme Court in Mendez specifically criticized the approach taken by the Court of Appeal in People v. Chavez, supra, 124 Cal.App.3d 215, which considered the substance of the appellant’s claims based on the existence of extraordinary circumstances even though there was a failure to comply with section 1237.5. (Mendez, supra, 19 Cal.4th at pp. 1097-1098, fn. 7.) In Mendez, the Supreme Court instructed us to apply section 1237.5 “in a strict manner” and to abandon the practice of considering “the peculiar facts of the individual appeal” in the interests of “judicial economy” or to avoid an inevitable collateral attack on the merits. (Mendez, supra, 19 Cal.4th at pp. 1097-1099.)

Although it is true the Supreme Court in Mendez did not specifically criticize the approach taken in Ivester, the facts and circumstances presented in Ivester are distinguishable from those presented in the record before us. The defendant in Ivester pled guilty and then challenged the validity of his plea collaterally and on direct appeal. Although the defendant challenged the validity of his plea, his counsel did not file a statement to comply with section 1237.5. The defendant argued the Court of Appeal “must nonetheless consider the substance of his appellate contentions to determine whether his counsel was ineffective in failing to prepare and file the requisite statement.” (Ivester, supra, 235 Cal.App.3d at p. 335.) The Court of Appeal concluded deficient performance by counsel in obtaining a certificate of probable cause was readily apparent based on the appellate record. As a result, the Court of Appeal considered whether counsel’s deficient performance was prejudicial. (Id. at pp. 337-338.) Defendant’s appeal was then dismissed because the court concluded the arguments raised by counsel on appeal would not have resulted in a reversal, so there was no prejudice to the defendant as a result of counsel’s ineffectiveness. (Id. at p. 340.) Here, the circumstances are distinguishable from those at issue in Ivester, because we cannot conclude deficient performance by counsel is readily apparent based on the appellate record.

The Sixth Amendment right to effective assistance of counsel can be violated by counsel’s failure to perfect an appeal. (Roe v. Flores-Ortega (2000) 528 U.S. 470, 476-477.) Under some circumstances, trial attorneys have a duty to consult with the defendant about the possibility of an appeal and/or to file a notice of appeal. (§1240.1; People v. Scott (1998) 64 Cal.App.4th 550, 563-564.) Appellate counsel appointed to represent a criminal defendant on appeal also has a duty to “act as a competent advocate.” (People v. Scott, at p. 564.) A defendant may comply with section 1237.5 through counsel or on his own, but if counsel does not do so on his behalf, a defendant who is acting on his own must still comply with section 1237.5. (Mendez, supra, 19 Cal.4th at p. 1100, fn. 10.)

In a habeas corpus proceeding, our Supreme Court acknowledged “certain negligence of trial counsel,” which results in the filing of an untimely notice of appeal and/or statement of reasonable grounds for appeal may justify application of the principle of constructive filing. (Chavez, supra, 30 Cal.4th at pp. 657-658, fn. 7.) However, “[i]neffective assistance of counsel claims are rarely cognizable on appeal.” (People v. Silvey (1997) 58 Cal.App.4th 1320, 1329.) This is because it is generally “ ‘inappropriate for an appellate court to speculate as to the existence or nonexistence of a tactical basis for a defense attorney’s course of conduct when the record on appeal does not illuminate the basis for the attorney’s challenged acts or omissions.’ ” (Ibid.) “ ‘[A] claim of ineffective assistance is more appropriately made in a habeas corpus proceeding, in which the attorney has the opportunity to explain the reasons for his or her conduct.’ ” (Ibid.) On direct appeal, we must reject a claim of ineffective assistance of counsel unless the record affirmatively shows deficient performance and no possible tactical purpose for an act or omission. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

In this case, the record before us does not affirmatively show deficient performance by counsel in perfecting the appeal. The record indicates defendant filed the notice of appeal “in propria persona.” In his brief, he represents he did so without the assistance of counsel. What the record does not show is the circumstances surrounding the filing of the notice of appeal by defendant “in propria persona,” apparently without the assistance of counsel. The notice of appeal form shown in the record instructed defendant to check one or more boxes indicating the reasons for the appeal. Defendant checked the box stating he only intended to challenge his sentence or other issues arising after the plea. As a result, it appeared it was not necessary for defendant to comply with section 1237.5 by requesting a certificate of probable cause. If defendant checked the box stating the appeal “challenges the validity of the plea,” he would have been warned by a notation on the form of the necessity to attach a request for certificate of probable cause.4 Since the record is silent as to what occurred, we cannot conclude there was any deficient performance by trial counsel in filing or preparing the notice of appeal.

The record indicates defendant was appointed counsel to assist him on appeal. On June 5, 2005, shortly after defendant filed his notice of appeal, defendant’s appellate attorney filed a proposed statement on appeal. The appellate attorney’s proposed statement on appeal contradicts the representation made in the notice of appeal form previously filed by defendant, which stated defendant only intended to challenge his sentence or other issues arising after the plea. The proposed statement on appeal represents that the issues to be raised on appeal include the validity of the plea based on ineffective assistance of counsel. Despite this change in the grounds for appeal, which appears to have been made well within the 60-day filing deadline, the record indicates there was no request for a certificate of probable cause to comply with section 1237.5.

The record further indicates the proposed statement on appeal was filed in the appellate division of the superior court, which only has jurisdiction over appeals in misdemeanor cases. (§ 1466; Cal. Rules of Court, rules 8.780(b), 8.782.) On January 11, 2007, the appellate division issued an “order transferring appeal erroneously filed in appellate division.” Citing section 1235 and rule 8.304 of the California Rules of Court, the appellate division’s order advised defendant that a transfer was necessary because the Court of Appeal has jurisdiction over the case.

Section 1235, subdivision (b), provides that: “An appeal from the judgment or appealable order in a felony case is to the court of appeal for the district in which the court from which the appeal is taken is located.” California Rules of Court, rule 8.304(a)(1), states as follows: “To appeal from a judgment or an appealable order of the superior court in a felony case . . . the defendant or the People must file a notice of appeal in that superior court.” “Felony case” is defined in California Rules of court, rule 8.304(a)(2), as “any criminal action in which a felony is charged, regardless of the outcome. A felony is ‘charged’ when an information or indictment accusing the defendant of a felony is filed . . . .” As the appellate division explained in the transfer order, “an information was filed charging [defendant] with one felony—a wobbler, Penal Code section 69—and with two misdemeanors. . . . [¶] In light of the foregoing, we find the instant appeal is from a judgment in a ‘felony case’ and the Court of Appeal—not this appellate division—has jurisdiction over it. [¶] However, the appeal was erroneously sent to us.” There is nothing in the record to show how or why the case was filed in the appellate division rather than the appropriate Court of Appeal. In other words, the record lacks affirmative proof of what actually occurred, so we cannot conclude there was deficient performance by counsel.

Even if defendant could show deficient performance by counsel in perfecting the appeal, there is nothing in the record to suggest defendant could establish prejudice based on any failure by counsel to obtain a certificate of probable cause. To prevail on a claim of ineffective assistance of counsel, the defendant also has the burden to show prejudice caused by counsel’s deficient performance. (Roe v. Flores-Ortega, supra, 528 U.S. at p. 477.) “A guilty plea admits every element of the crime and constitutes a conviction.” (People v. Hoffard (1995) 10 Cal.4th 1170, 1177.) “For that reason, and without regard to section 1237.5, issues going to the determination of guilt or innocence are not cognizable on appeal.” (Id. at p. 1178.) For example, a defendant “may not enter into a negotiated disposition for an offense, . . . enjoy the fruits thereof, and then challenge the factual basis for the plea on appeal.” (People v. Borland (1996) 50 Cal.App.4th 124, 127.) Rather, a guilty plea “concedes that the prosecution possesses legally admissible evidence sufficient to prove defendant’s guilt beyond a reasonable doubt. Accordingly, a plea of guilty waives any right to raise questions regarding the evidence, including its sufficiency or admissibility . . . .” (People v. Turner (1985) 171 Cal.App.3d 116, 125.)

Although defendant’s issues on appeal are framed as claims of ineffective assistance of counsel, the record suggests defendant in substance only seeks to challenge the factual basis of the plea and the sufficiency of the prosecution’s evidence to support the charge of resisting arrest. In his first ineffective assistance of counsel claim, defendant argues, without support, that he was coerced or pressured by his original trial attorney to accept the plea bargain. However, as outlined above, the prosecution presented strong evidence of guilt during the preliminary hearing, and, by accepting the plea, a felony charge of resisting arrest was reduced to a misdemeanor, one misdemeanor count was dismissed, and defendant was granted probation. There is nothing in the record to suggest counsel’s advice was unsound and was not in defendant’s best interests. Nor does the record show any of counsel’s advice was false or fraudulent. The record also indicates defendant did, in fact, receive the benefit of his bargain. “A plea may not be withdrawn simply because the defendant has changed his mind.” (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)

In his second ineffective assistance of counsel claim, defendant contends the attorney who represented him in pursuing his motion to withdraw failed to submit any evidence to support the motion. He argues this attorney “was under a duty to at least call [defendant] to testify concerning the facts and how he was coerced to make the plea, or to call trial counsel to establish the basis for his advice to [defendant] that he change his plea.” As outlined more fully ante, the record shows the motion to withdraw was submitted along with evidence in the form of a declaration by defendant disputing the factual basis for the charge of resisting arrest. Defendant does not state what other evidence, if any, should or could have been presented to justify withdrawal of his guilty plea. Without more, it appears defendant appealed simply because he wants another opportunity to attack the sufficiency of the evidence and the factual basis for the plea. Under these circumstances, defendant could not establish prejudice, because there is nothing to indicate the issues he wanted to raise on appeal would have even been cognizable if a certificate of probable cause was obtained.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORT

RAMIREZ

P. J.

We concur:

McKINSTER

J.

RICHLI

J.



1 All further statutory references are to the Penal Code unless otherwise indicated.



2 The People contend defendant’s claim of ineffective assistance of counsel while pursuing his motion to withdraw his plea is reviewable without a certificate of probable cause because it challenges conduct by counsel which occurred after the entry of the plea. However, because the motion was in substance an attack on the validity of the plea, a certificate of probable cause was required. (In re Chavez, supra, 30 Cal.4th at p. 651, citing People v. Ribero (1971) 4 Cal.3d 55, 63-64 [“[i]f a defendant challenges the validity of his plea by way of a motion to withdraw the plea, he cannot avoid the requirements of section 1237.5 by labelling the denial of the motion as an error in a proceeding subsequent to the plea” and “[i]n determining the applicability of section 1237.5, the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made”].)



3 Rule 8.782(a) of the California Rules of Court, which applies to appeals in the appellate division of the superior court, provides only for the filing of a notice of appeal signed by the appellant or his attorney specifying the judgment or order from which the appeal is taken.



4 During oral argument, defendant blamed the superior court clerk for allegedly failing to take the ministerial steps outlined in rule 8.304(b)(3) of the California Rules of Court, which he claims should have served to prevent his failure to request or obtain a certificate of probable cause. In pertinent part, rule 8.304(b)(3) states as follows: “If the defendant does not file the statement required by [section 1237.5] . . . the superior court clerk must mark the notice of appeal ‘Inoperative,’ notify the defendant, and send a copy of the marked notice of appeal to the district appellate project.” However, because defendant did not check the box on the notice of appeal form indicating he intended to challenge the validity of his plea on appeal, there was nothing to trigger the clerk’s duty to mark the notice of appeal “inoperative” for failure to attach the required statement.