Filed 12/19/13 P. v. Heirendt CA4/3




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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048439

         v.                                                            (Super. Ct. No. 13NF0595)

MICHAEL VICTOR HEIRENDT,                                               OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Gregg L.
Prickett, Judge. Appeal dismissed.
                   Patrick E. DuNah, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   No appearance for Plaintiff and Respondent.




                                          *                  *                  *
              Defendant Michael Victor Heirendt pled guilty to possession of a controlled
substance (Health & Saf. Code, § 11350) pursuant to a negotiated disposition. As agreed
in the guilty plea form, he was placed on three years formal probation with credit for time
served of 62 days. He was also ordered to pay a $280 restitution fine (Pen. Code,
§ 1202.4, subd. (b)(1)), and a $280 probation revocation restitution fine (Pen. Code,
§ 1202.44) which was stayed pending successful completion of probation.
              Heirendt filed two timely notices of appeal and an amended notice of
appeal, and he sought but did not obtain a certificate of probable cause as required by
Penal Code section 1237.5.
              After Heirendt appealed we appointed counsel to represent him. Counsel
filed a brief which set forth the facts and the disposition of the case. He did not argue
against Heirendt, but advised he had not found any issues to argue on Heirendt’s behalf.
(People v. Wende (1979) 25 Cal.3d 436.) He suggested two issues to assist us in our
independent review of the record, as set out below. Heirendt was given 30 days to file
written argument in his own behalf. That period has passed and we have received no
communication from him. We have examined the entire record to determine if any
arguable issues are present, including those suggested by counsel and found none. (Id. at
pp. 441-442; People v. Johnson (1981) 123 Cal.App.3d 106, 111-112.)
                                          FACTS
              Paragraph 29 of the guilty plea form signed by Heirendt states: “In Orange
County, California, on February 15, 2013 I knowingly and unlawfully possessed a
useable amount of hydrocodone pills without a prescription.” Paragraph 15 of the guilty
plea form states: “I understand I have the right to appeal from decisions and orders of the
Superior Court. I waive and give up my right to appeal from any and all decisions and
orders . . . . I waive and give up my right to appeal from my guilty plea. I waive and
give up my right to appeal from any legally authorized sentence the court imposes which
is within the terms and limits of this plea agreement.”

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                                       DISCUSSION
1. Constitutionality of Plea
              Appellate counsel first suggests we consider whether Heirendt’s plea in
exchange for probation is constitutionally valid. But, as we noted above, Heirendt did
not obtain the certificate of probable cause required by Penal Code section 1237.5 which
governs a defendant’s right to appeal “from a judgment of conviction upon a plea of
guilty or nolo contendere.” It specifies that, “[n]o appeal shall be taken” unless, “[t]he
defendant has filed with the trial court a written statement . . . showing reasonable
constitutional, jurisdictional, or other grounds going to the legality of the proceedings,”
and “[t]he trial court has executed and filed a certificate of probable cause for such appeal
. . . .” (Pen. Code, § 1237.5, subds. (a), (b); see also Cal. Rules of Court, rule 8.304(b).)
              The scope of Penal Code section 1237.5 is a recurrent issue. The Supreme
Court has addressed the issue with some regularity (see People v. Mendez (1999) 19
Cal.4th 1084; People v. Lloyd (1998) 17 Cal.4th 658; People v. Panizzon (1996) 13
Cal.4th 68), as have the Courts of Appeal (People v. Young (2000) 77 Cal.App.4th 827;
People v. Cole (2001) 88 Cal.App.4th 850). Various courts have taken different
approaches in making the ultimate decision to dismiss the appeal or allow the defendant
to proceed with an appeal after a guilty plea.
              However, the Supreme Court has articulated a test to be applied in such
instances: “In Panizzon, we recognized that, even if it purportedly challenges the
sentence only, a defendant’s appeal from a judgment of conviction entered on a plea of
guilty or nolo contendere must be dismissed in the absence of a statement of grounds by
the defendant and a certificate of probable cause by the trial court if, in substance, it
challenges the validity of the plea. [Citation.] It does so if the sentence was part of a
plea bargain. [Citation.] It does not if it was not [citation] — especially so if the claim or
claims in question were ‘reserved as part of the plea agreement’ [citation].” (People v.
Lloyd, supra, 17 Cal.4th at p. 665.)

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              There is no question that in substance Heirendt challenges the validity of
the guilty plea. “Further, even if it is assumed that defendant’s claim does not challenge
the validity of the plea, the claim still is not reviewable on appeal because the terms of
the plea bargain preclude any appeal of the negotiated sentence.” (People v. Panizzon,
supra, 13 Cal.4th at p. 89.) Therefore, the appeal must be dismissed
2. Waiver of Hearing Regarding Public Defender Fees
              Appellate counsel next suggests the separate “Waiver of Hearing Regarding
Public Defender or Court Appointed Counsel Fees and Court Order” signed by Heirendt
at the time of his guilty plea may not be valid. The form states, in relevant part: “In any
case in which a defendant is provided an attorney . . . , the Court may, after notice and a
hearing, make a determination of the present ability of the defendant to pay all or a
portion of the cost of that legal representation. . . . [¶] WAIVER AND CONSENT TO
ORDER [¶] I understand the above and waive my right to a Court hearing. I further
understand and agree that the Court may enter a judgment against me for . . . ___ $200.00
felony.”
       Appellate counsel notes that while the space next to the $200 figure is checked,
the box in the far left margin adjacent to Heirendt’s signature on the form is not. We find
the failure to check that box on the form does not render the waiver invalid. The form is,
after all signed by Heirendt immediately below the $200 figure. Furthermore, the
minutes of the guilty plea hearing state “Waiver of Hearing regarding Public Defender or
Court Appointed Attorney fees and court order signed and filed.” Finally, the transcript
of the guilty plea hearing reflects a colloquy between the court and defense counsel
concerning the waiver and imposition of the public defender and booking fees, all of
which occurred in the presence of Heirendt. Under these circumstances we conclude the
waiver in question is valid.




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                                 DISPOSITION
           For the reasons stated above we conclude the appeal must be dismissed.




                                            THOMPSON, J.

WE CONCUR:



O’LEARY, P. J.



RYLAARSDAM, J.




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