Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F02517
SCOTLAND, P.J.
Defendant Gregory Eric Hunt entered a negotiated plea of no contest to second degree robbery with personal use of a firearm and admitted having a prior serious felony conviction (strike). In doing so, he stipulated to the following factual basis for his plea and admission: “On or about March 11, 2007[,] . . . [defendant] unlawfully used fear and force to take a wallet, keys and a cell phone from the victim[’s] . . . person. [¶] . . . [¶] Defendant . . . personally used a handgun that he pointed at the victim. [¶] Defendant . . . suffered a prior conviction on March 1st, 2000[,] in the State of Ohio for aggravated robbery, falling within California’s Strike provision.” Consistent with the plea agreement, he was sentenced to an aggregate term of 14 years in prison (the lower term of two years for the robbery, doubled for the strike, plus ten years for using a firearm).
On appeal, defendant claims the court erred by depriving him of his right “to present a motion to withdraw his plea.” We agree with the People that defendant’s claim is not cognizable on appeal because he failed to obtain a certificate of probable cause. (Pen. Code, § 1237.5; further section references are to the Penal Code.) Thus, we shall dismiss the appeal.
DISCUSSION
Section 1237.5 states that an appeal may not be taken from a plea of guilty or no contest unless (1) the defendant has filed, under oath, a written statement showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceeding, and the trial court has issued a certificate of probable cause for such appeal, or (2) the appeal is based on “[g]rounds that arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 8.304(b)(4)(B).) “In determining whether section 1237.5 applies[,] . . . the critical inquiry is whether a challenge . . . is in substance a challenge to the validity of the plea . . . .” (People v. Panizzon (1996) 13 Cal.4th 68, 76, some orig. italics, some italics added.)
Here, at sentencing, defendant’s counsel advised the court that although there was no “legal cause” why judgment should not be pronounced, defendant had “previously indicated . . . he wishes to withdraw his plea” of no contest. Without inquiring about the specific basis for a motion to withdraw defendant’s plea, the court summarily denied the motion and proceeded to sentence defendant.
Defendant filed an appeal from the judgment but did not seek a certificate of probable cause. In his view, compliance with section 1237.5 was not required because his claim of error “is based on events occurring after the plea and is not in itself an attack on the validity of the plea.” A similar contention was rejected by this court in People v. Emery (2006) 140 Cal.App.4th 560 (hereafter Emery).
The appellant in Emery pled no contest to a criminal offense, then sought to continue the sentencing hearing so defense counsel could investigate whether a ground existed for moving to withdraw the plea. (Emery, supra, 140 Cal.App.4th at p. 562.) Concluding the request for a continuance to file a motion to withdraw the plea was, in substance, a challenge to the validity of the plea within the meaning of the California Supreme Court’s ruling in People v. Panizzon, supra, 13 Cal.4th at p. 76, Emery held the appeal was barred by the appellant’s failure to obtain a certificate of probable cause. (Emery, supra, 140 Cal.App.4th at pp. 562, 564-565.) In reaching this conclusion, Emery rejected the appellant’s argument that a certificate of probable cause was not required because the appeal did “‘not directly challenge the validity of the plea, but rather . . . the court’s improper denial of due process by denying [him] an opportunity to be heard.’” (Id. at p. 565.)
In this case, defendant makes an argument like the one that was rejected in Emery. He says the summary denial of his motion to withdraw his no contest plea violated his right “to have a full and fair hearing on that motion” and, thus, he does not need a certificate of probable cause to appeal. However, by challenging the ruling on his motion to withdraw his plea, defendant is in substance challenging the validity of his plea. (See Emery, supra, 140 Cal.App.4th at pp. 562, 564-565; see also People v. Caravajal (2007) 157 Cal.App.4th 1483, 1486-1487.) Accordingly, his failure to obtain a certificate of probable cause bars him from bringing this appeal. (Emery, supra, at p. 562.)
DISPOSITION
The appeal is dismissed.
We concur: NICHOLSON, J., CANTIL-SAKAUYE, J.