Filed 4/8/16 P. v. Carrillo CA5



                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F070784
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F14908761)
                   v.

ANTONIO GODINA CARRILLO,                                                                 OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. James A.
Kelley, Judge.
         Gabriel C. Vivas, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff
and Respondent.
                                                        -ooOoo-




*        Before Poochigian, Acting P.J., Detjen, J. and Peña, J.
       Appellant Antonio Godina Carrillo appeals from his nolo contendere plea to one
count of possession for sale of methamphetamine with a prior prison term enhancement
(Health & Saf. Code, §§ 11378, 11370.2, subd. (c)). Appellant contends the trial court
failed to determine that an adequate factual basis supported his plea. Because appellant
did not submit a written statement showing reasonable grounds for this appeal or obtain a
certificate of probable cause, we dismiss this appeal.
                  FACTUAL AND PROCEDURAL BACKGROUND
       On September 18, 2014, appellant was charged with transport for sale of a
controlled substance (Health & Saf. Code, § 11379, subd. (a)/count 1) and possession for
sale of a controlled substance (Health & Saf. Code, § 11378/count 2). The complaint
included an alleged enhancement for a prior Health and Safety Code violation (Health &
Saf. Code, § 11370.2, subd. (c)) and four allegations of enhancements for prior
convictions (Pen. Code, § 667.5, subd. (b)).
       On October 8, 2014, appellant entered into a plea agreement with respect to
count 2. As part of that agreement, appellant would admit the enhancement for the prior
Health and Safety Code violation and one prior conviction. In exchange, the prison prior
would be struck for sentencing purposes. Appellant was questioned on the agreement,
pled guilty, and admitted the enhancements.
       During the plea colloquy, the trial court asked: “Counsel, if I were to read the
police reports in this case, would I conclude that there is a sufficient factual basis for the
plea?” Defense counsel responded with “Yes.” The People agreed, noting appellant was
pleading pursuant to People v. West (1970) 3 Cal.3d 595. Based on these representations,
the trial court found “there is a sufficient factual basis for the plea.”
       Appellant was subsequently sentenced in line with the plea agreement. This
appeal timely followed. However, there is no record that appellant complied with Penal
Code section 1237.5 prior to filing this appeal.



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                                       DISCUSSION
       Appellant contends the trial court failed to properly determine whether an
adequate factual basis existed for his guilty plea. (Pen. Code, § 1192.5, par. 3.) In his
“Statement of Appealability,” appellant claims this appeal “is limited to matters occurring
after entry of the plea, and does not challenge the plea,” and thus, “is authorized by Penal
Code [section] 1237.5.” The People challenge this statement, and note that appellant
lacks the certificate of probable cause required to appeal from a nolo contendere plea
under Penal Code section 1237.5.
Standard of Review and Applicable Law
       Penal Code section 1237.5 provides that “[n]o appeal shall be taken by the
defendant from a judgment of conviction upon a plea of guilty or nolo contendere” unless
two requirements are met: (1) 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”; and (2) the “trial
court has executed and filed a certificate of probable cause for such appeal with the clerk
of the court.” (Pen. Code, § 1237.5, subds. (a) & (b).) “Under [Penal Code] section
1237.5 and [California Rules of Court, former] rule 31(d), first paragraph [now rule
8.304(b)(1)], the [California] Court of Appeal generally may not proceed to the merits of
the appeal, but must order dismissal thereof, unless the defendant has filed a statement of
certificate grounds as an intended notice of appeal, and has obtained a certificate of
probable cause, in full compliance therewith.” (People v. Mendez (1999) 19 Cal.4th
1084, 1099.)
       California Rules of Court, rule 8.304(b)(5), explains how we are to proceed if
appellant’s statement of appealability is incorrect. “If the defendant’s notice of appeal
contains a statement under (4) [alleging the appeal is based on grounds that arose after
entry of the plea and does not affect the plea’s validity], the reviewing court will not
consider any issue affecting the validity of the plea unless the defendant also complies

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with (1) [the requirement to seek a certificate of probable cause].” (Cal. Rules of Court,
rule 8.304(b)(5).) “In assessing whether an appeal that purports to challenge a post-
guilty-plea sentence requires a certificate of probable cause, courts examine the substance
of the appeal: ‘[T]he crucial issue is what the defendant is challenging, not the time or
manner in which the challenge is made.’” (People v. Zuniga (2014) 225 Cal.App.4th
1178, 1183 (Zuniga).)
The Appeal Must be Dismissed
       We reject appellant’s statement that this appeal does not challenge the plea’s
validity. It is well settled that appeals concerning the lack of a factual basis for a guilty
plea attack the plea itself. (Zuniga, supra, 225 Cal.App.4th at p. 1187; People v. Zamora
(1991) 230 Cal.App.3d 1627, 1632-1633 (Zamora).) In this case, the trial court directly
asked counsel whether a factual basis for the plea existed and received affirmative
answers from both defense counsel and the People. Appellant asks us to review that
process and determine whether his plea is valid. A certificate of probable cause is
required to proceed with such an inquiry. (Zamora, supra, 230 Cal.App.3d at p. 1633.)
As no certificate of probable cause has been included in the record, and appellant has not
challenged the People’s assertion that none was sought, we are not at liberty to proceed to
the merits. (Ibid.)
                                       DISPOSITION
       The appeal is dismissed for failure to comply with Penal Code section 1237.5.




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