People v. Castelan

Opinion

NICHOLSON, J.

Defendant entered negotiated pleas of no contest to second degree murder, assault with a firearm, and shooting at an occupied motor vehicle. Defendant admitted allegations that he personally used a firearm in each offense.

[1187]

On the date set for pronouncement of judgment and sentence, defendant moved to withdraw his plea on the ground “his free will was overcome” by “pressure from his attorney to plea[d] guilty.” New counsel was appointed to assist on the motion and a hearing was scheduled. Following the hearing, the motion was denied. Defendant was sentenced to a state prison term of fifteen years to life for the murder plus five years for one of the enhancements for use of a firearm. Concurrent terms were imposed for the remaining counts. The two other enhancements for use of a firearm were stricken. Defendant was ordered housed at the California Youth Authority.

Defendant filed a notice of appeal in proprio persona which failed to contain the statement required by Penal Code section 1237.5.

1

Thereafter, he timely filed a notice of appeal and statement in which he asserted the terms of his plea bargain had not been kept and he did not knowingly, intelligently, and voluntarily enter his pleas. Later, through his trial counsel, defendant timely filed a notice of appeal which stated: “This appeal is based on the sentence or other matters occurring after the plea.” The trial court denied a certificate of probable cause to appeal. Defendant did not challenge the denial by way of writ of mandate. (See

In re Brown

(1973) 9 Cal.3d 679, 683 [108 Cal.Rptr. 801, 511 P.2d 1153].)

Counsel was appointed to represent defendant on appeal. Defendant has filed an opening brief containing a single contention: the trial court abused its discretion by denying his motion to withdraw his plea. Because defendant’s “essential attack is on the validity of his plea, he is subject to [Penal Code] section 1237.5 even if he raises the question after the plea, by the vehicle of a motion to withdraw.”