People v. Vu CA6

Filed 3/22/16 P. v. Vu CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H041635 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1489948)

v.

DIEP VAN VU,

Defendant and Appellant.

Defendant Diep Van Vu appeals from a judgment of conviction entered after he pleaded no contest to misdemeanor possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)). Since this court lacks jurisdiction over the present appeal, the case is transferred to the appellate division of the Santa Clara County Superior Court.

I. Statement of the Case On July 24, 2014, a felony complaint was filed and charged defendant with felony possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)). The complaint also alleged one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12)1 and four prior prison terms (§ 667.5, subd. (b)). No preliminary hearing was held.

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

At the plea hearing on November 6, 2014, the trial court and the parties agreed that possession of cocaine base was now a misdemeanor pursuant to Proposition 47, the Safe Neighborhoods and School Act (Proposition 47). Defendant pleaded no contest to misdemeanor possession of cocaine base and the remaining allegations were dismissed. No information or indictment was ever filed and the case was not certified to superior court pursuant to section 859a. Defendant waived time for sentencing. The trial court denied probation and sentenced defendant to 180 days in county jail to run concurrent to a county jail term which was imposed in an unrelated case.

II. Discussion The Attorney General contends that this court does not have jurisdiction over defendant’s case. We agree. The Court of Appeal has jurisdiction over any “judgment or appealable order in a felony case . . . .” (§ 1235.) A “felony case” is “a criminal action in which a felony is charged and includes a criminal action in which a misdemeanor or infraction is charged in conjunction with a felony.” (§ 691, subd. (f).) “A felony is ‘charged’ when an information or indictment accusing the defendant of a felony is filed or a complaint accusing the defendant of a felony is certified to the superior court under Penal Code section 859a.” (Cal. Rules of Court, rule 8.304, subd. (a)(2).) People v. Nickerson (2005) 128 Cal.App.4th 33 is instructive. In Nickerson, the defendant was charged with a felony and two misdemeanors. (Id. at p. 36.) Following a preliminary hearing, the trial court, acting as a magistrate, held him to answer only on the two misdemeanors. (Ibid.) A jury later convicted him of one of the misdemeanors. (Ibid.) The issue on appeal was: “when is a felony ‘charged’ for purposes of ascertaining appellate jurisdiction?” (Id. at p. 37.) Nickerson concluded: “When the matter goes before the magistrate for a preliminary examination and the court as magistrate reduces all of the felony charges from felonies to misdemeanors under 2