P. v. Thomas 11/30/04 CA2/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B177775

Case Date: 04/06/2005

Preview:Filed 11/30/04

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, Plaintiff and Respondent, v. DANIEL RAY THOMAS, Defendant and Appellant. B177775 (Los Angeles County Super. Ct. No. MA029140)

APPEAL from a judgment of the Superior Court of Los Angeles County, Randolph A. Rogers, Judge. Dismissed. Cheryl Barnes Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer, Deputy Attorney General, for Plaintiff and Respondent.

Defendant, Daniel Ray Thomas, purports to appeal from his conviction of felony possession of a counterfeit seal in violation of Penal Code1 section 472. We noted defendant had failed to secure a probable cause certificate as required by section 1237.5 which applies to appeals after no contest, nolo contendere, or guilty pleas. We have the duty to raise issues concerning our jurisdiction on our own motion. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126; Olson v. Cory (1983) 35 Cal.3d 390, 398.) Hence, we issued an order to show cause concerning possible dismissal of the appeal and provided the parties the option of oral argument. We conclude defendant has failed to fully and timely comply with the statutory and rule promulgated requirements for a notice of appeal. Hence, the appeal must be dismissed. On July 28, 2004, defendant pled no contest to the counterfeit seal charge. On August 16, 2004, defendant filed a pro se notice of appeal. The four and one-half page handwritten notice of appeal began: "Please take notice I hereby appeal from the judg[]ment entered on July 28, 2004." The notice of appeal claimed that: defendant was misadvised prior to pleading no contest of his maximum exposure; defendant's parole officer and a detective had made misrepresentations concerning expungement and a parole hold; there was no factual basis for the plea; and the plea was not knowingly and intelligently entered. Finally, the notice of appeal indicates defendant is appealing the sentence. Although it is not entirely clear what defendant was appealing in terms of the disposition, the notice of appeal makes reference to a probation condition. Further, reference is made to the duration of the time served in custody prior to the probation and sentence hearing. Before proceeding to a discussion of the controlling law, we note that material parts of the California Rules of Court2 concerning appeals from guilty, no contest, and

1 2

All future statutory references are to the Penal Code. All future references to a rule are to the California Rules of Court. 2

nolo contendre pleas were amended effective January 1, 2004. (Advisory Com. com, Deering's Ann. Codes, Rules (2004 ed.) foll. rule 30, pp. 327-328.) The Supreme Court authority cited in this opinion discussed former rule 31 in its various iterations over the years. What was in former rule 31 concerning appeals from guilty, no contest, and nolo contendre pleas is now in rule 30. The January 1, 2004, amendments to the court rules do not affect the Supreme Court authority cited in this opinion construing former rule 31. Pursuant to section 1237.5, a defendant may not appeal from a judgment of conviction entered on a no contest plea unless: "(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. [

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