Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. BB408838.
BAMATTRE-MANOUKIAN, ACTING P.J.
Following the trial court’s denial of her motion to exclude at trial evidence of her statements to the police, defendant Maria Ana Quinones pleaded no contest to second degree murder. (Pen. Code, § 187.) The trial court sentenced her to state prison for the indeterminate term of 15 years to life. On appeal, defendant contends that she should be allowed to withdraw her plea because it was induced by an unenforceable promise of a right to appeal the trial court’s ruling on her in limine motion. We find that because defendant failed to timely obtain a certificate of probable cause, she may not contest the validity of her plea on appeal. Therefore, we will dismiss the appeal.
All further statutory references are to the Penal Code.
Defendant has also filed a petition for writ of habeas corpus, which this court ordered considered with the appeal. In the petition, defendant contends that trial counsel rendered ineffective assistance by failing to file a timely request for a certificate of probable cause. We have disposed of the petition by separate order filed this day. (See Cal. Rules of Court, rule 8.264(b)(4).)
All further rule references are to the California Rules of Court.
BACKGROUND
On July 8, 2004, construction workers found the body of a baby on their construction site. Officers investigating the incident interviewed employees and guests of the nearby Days Inn where defendant worked. They also spoke to defendant’s relatives who reported that they suspected that defendant had been pregnant. During a police interview, defendant admitted that she smothered the baby shortly after its birth at her home in February 2004, and that she disposed of its bundled body by throwing it over a fence near her work. Defendant’s former boyfriend provided a DNA sample which confirmed that he was the baby’s father.
Defendant was charged by information filed December 2, 2005, with murder of a baby (§ 187, count 1) and assault on a child with force likely to produce great bodily injury resulting in death (§ 273ab, count 2). On October 6, 2006, defendant filed a motion in limine, seeking to exclude at trial evidence of her statements to police as coerced and involuntary. The prosecutor filed opposition to the motion, contending that defendant voluntarily waived her Miranda rights.
Miranda v. Arizona (1966) 384 U.S. 436.
The hearing on the motion was held October 23, 2006. At the hearing, the transcript of the tape recording of defendant’s police interview was admitted into evidence and the parties stipulated that the transcript is an accurate transcript of the recording and that the translation is true and correct. The transcript of the preliminary examination testimony by Palo Alto Police Officer Marianna Villaescusa was also admitted into evidence by stipulation of the parties. That testimony was as follows.
The interview was conducted in Spanish.
Around 10:30 a.m. on July 10, 2004, Officer Villaescusa went to a Days Inn in order to assist Detective Powers with some interviews in Spanish. Villaescusa knew that the body of a baby had been found behind the inn and that all of the inn workers were being interviewed. At Powers’s request, Villaescusa, who was in uniform, explained to defendant in Spanish that she was not “in any trouble,” but that they would like her to go to the police department with them to talk about the incident they were investigating. Defendant agreed to go with them, and was allowed to call a coworker before they left. Villaescusa heard defendant say during her telephone conversation that she did not know if she was going to be returning. After the conversation ended, Villaescusa asked defendant why she said that. Defendant said that she did not know what the officers were going to ask her. Defendant looked through her purse and asked if she could leave it there. Villaescusa told defendant that she was going to be coming back and that she did not need to worry about leaving her things there.
Defendant was not handcuffed, but seemed to Villaescusa to be nervous as she was walking to the police car, so Villaescusa said to her, “You need to be honest with the detectives. You don’t have to worry about it.” Defendant looked at Villaescusa nervously. Villaescusa then asked, “Is there anything you need to tell me?” “Is that your baby? Was that your child?” Defendant responded affirmatively and said that she did not want her family to know that she had been pregnant. Villaescusa was surprised at defendant’s response and she told Detective Powers what was just said.
Defendant was not arrested and was placed in the unmarked police car unhandcuffed. Officer Villaescusa sat next to her during the drive to the police department. Because Villaescusa thought that defendant had just delivered the baby, Villaescusa asked defendant if she had seen a doctor and defendant answered no. Villaescusa asked defendant if she wanted the officers to call a doctor. Defendant responded, “ ‘No, I had the baby in February.’ ” Villaescusa did not ask defendant any other medical questions during the drive, but they did have some small talk. When they got to the police department, Villaescusa asked defendant if she wanted anything to eat or drink and defendant said no. Villaescusa went into the interview room with defendant so that defendant could be interviewed by Officer Sal Madrigal.
At the hearing on defendant’s motion, Officer Madrigal testified that he speaks fluent Spanish and is a certified Spanish-speaking officer. Detective Powers and Officer Villaescusa were present when he first interviewed defendant in Spanish on July 10, 2004, at the police department. Defendant was not handcuffed during the interview, which was tape recorded. Officer Madrigal told defendant that he was aware that defendant spoke to Officer Villaescusa, that he wanted to talk to her in more detail about what happened, and that they wanted to help her as much as they could. He then read defendant her Miranda rights from his department-issued Miranda card. Defendant said that she understood those rights, and then made admissions about what happened. Officer Madrigal spoke with defendant a second time at the jail the next day, and he read her her Miranda rights again. That interview was also tape recorded. At no time during either interview did Madrigal promise defendant that she would get lenient treatment in exchange for what she said.
According to the transcript of the interview, Officer Madrigal said: “I already know that you talked to her recently and . . . and I want, well, to talk in more detail about what happened. And, ah, I hope that you can help us. Ah, we want to help as much as . . . as we can and we are trying to do whatever we can to help you. Okay?”
Defendant testified that she was 22 years old in July 2004. She came to the United States illegally from Mexico with some siblings when she was 19 years old. She found employment at the Days Inn two or three months later, and started taking English classes. She still speaks very little English.
Two days before she talked to Officer Madrigal, she saw officers near her work and she suspected that they found her baby. The following day, officers asked her questions about a possible pregnant person being at the inn, and she thought that the questions were connected to the baby. When the officers returned to the inn on July 10, 2004, and asked her to accompany them to the police department, she asked permission to use the phone. She told the person she called that she was not sure if she would be coming back because she thought that she was being detained and she did not know what to expect once she got to the police department. Part of the reason she told Officer Villaescusa that the baby was hers was because she felt bad about what had happened. When she spoke with Officer Madrigal, he asked her if she could help them and he said that he would do everything possible to help her. He asked her to explain what happened but he did not tell her what kind of help he was offering her. She thought that she had been arrested and that Madrigal was offering her a shorter jail sentence. She spoke to Madrigal because he offered her the help; she would not have answered his questions if he had not offered to help her.
After the matter was submitted, the court denied the motion to exclude defendant’s statements to police as involuntary. The court found that the questioning of defendant the day after the baby’s body was found “was not a custodial interrogation nor had any suspicion focused on the defendant.” The court further found that defendant’s “next contact with police was on day three when Officer Villaescusa was asked to help interview Spanish speaking employees and along the way was asked to transport the defendant to the police department apparently so that other Spanish speaking officers could be brought into the task, and although there were some sort of generalized questions asked . . . it was clearly not a custodial interrogation nor was there any suspicion focused on the defendant by Officer Villaescusa, and that brief interaction which led to the statements by the defendant focusing suspicion on her is not really at issue here. [¶] That leaves us to the . . . interaction which was the actually Mirandized so-called interview at the police department with Officer Madrigal on day three . . . and the subsequent separately Mirandized interview at Elmwood on day four. [¶] And with respect to these two interviews at issue, the court is compelled to find based upon the, applying the appropriate burden of proof and the standards enunciated in the governing cases that the People have met their burden of proof by a preponderance that this was voluntary. [¶] . . . I should also state specifically that of course the mere fact that the defendant now says that this very ambiguous promise of help was to her a promise of leniency as opposed to something else, and that it was a compelling but for causation of her talking, does not mean that I have to negate the legality of the interrogation. It is just one factor and frankly that particular part of her testimony I don’t find to be particularly credible.” “I should also point out that given the totality of the circumstances, even if there were some nominal taint associated with the interview at the police department, by the time of the last interview at Elmwood, it seems to me any such taint would have evaporated by the passage of time and by the new circumstances, and I should note that no promises however ambiguous were made at that time.”
Immediately following the trial court’s ruling, the court granted the prosecutor’s request for “a brief recess so counsel and defense and I could have a conversation.” After the recess, the prosecutor informed the court that the matter had been resolved, and summarized the resolution as follows. “It is the People’s understanding that the defendant will plead guilty or no contest to Count 1, murder. That the degree of murder will be affixed at second degree murder, and as the court and counsel know, the mandatory sentence for that is 15 years to life. [¶] That Count 2 will be submitted for dismissal at the time of sentencing, and that will be the resolution of this case. [¶] Of course, all the other usual things that go along with felony plea and especially a plea to a charge like this including fines and fees and parole advisements and other consequences apply, but that was just my summary of the resolution.”
The court asked defendant’s counsel whether he concurred in the recitation of the agreement and whether the prosecutor’s motion to amend count 1 to specify the degree of the offense as second degree would be granted without objection. Counsel answered yes to both questions. The court then asked defendant if she understood the disposition that had been outlined and whether it was her desire to plead no contest to murder in the second degree. Defendant replied yes to both questions. The court obtained defendant’s waiver of rights and her statement indicating that she understood the consequence of such a plea. After the prosecutor informed the court that he had no further questions of defendant, the following occurred.
“[DEFENSE COUNSEL]: Your Honor, if I might add briefly that this disposition, my client reserves her right to appeal any issues that may be appropriate.
“THE COURT: Thank you for specifying that. That was, of course, my assumption and obvious to me, and, of course, she doesn’t lose her rights to appeal on the court’s ruling today, and thank you for specifying that.
“[DEFENSE COUNSEL]: Or any subsequent rulings.
“THE COURT: Right
“[DEFENSE COUNSEL]: Thank you, your Honor.
“THE COURT: Counsel, do you have any further voir dire that you would like to engage in with your client to make a record here?
[DEFENSE COUNSEL]: No, your Honor. Other than I had, I believe, ample time to discuss with my client the status of the case, the issues that we have litigated and ultimately her right to go to a jury trial.
“We had numerous discussions in that regard, and Ms. Quinones has indicated to me today and before today that she did not want to go to trial, and she wanted to resolve the case, and as [the prosecutor] knows, we’ve engaged in numerous attempts to resolve the case short of trial prior to today and finally do come to resolution today.
“I’ve explored any possible disposition that I believed would have been beneficial to my client, and I failed in that regard, and we had a disposition today and my client again had indicated before today that she would – did not want to go to trial and wanted to resolve the case, and I, of course do agree with that decision.”
The court then accepted defendant’s no contest plea to second degree murder and the parties stipulated that the police reports and the preliminary hearing transcript provide a factual basis for the plea. On December 14, 2006, the court sentenced defendant to state prison for the indeterminate term of 15 years to life.
On February 13, 2007, a notice of appeal signed by defendant’s trial counsel was filed in the trial court which states: “Please take notice that defendant Maria Ana Quinones, appeals the court verdict and judgment entered in the above entitled action on or about December 14, 2006. [¶] Defendant is without means to retain counsel on appeal and hereby requests appointment of counsel.” On or about July 3, 2007, defendant’s trial counsel submitted a request for a certificate of probable cause to the trial judge. The trial judge signed the certificate of probable cause on July 12, 2007.
DISCUSSION
On appeal, defendant contends that she should be allowed to withdraw her plea because it was induced by an unenforceable promise of a right to appeal. She argues that the trial court’s promise to her that she had a right to appeal the denial of her motion to exclude at trial her statements to police was unenforceable, that the promise induced her guilty plea, and that the issue should be considered by this court despite the lack of a timely certificate of probable cause because a certificate of probable cause is not required to raise this issue on appeal. “[N]o case has ever held that contesting a plea agreement based upon the misrepresentation of the right of appeal required a certificate of probable cause.” Alternatively, defendant argues that trial counsel provided ineffective assistance by failing to file a timely request for a certificate of probable cause.
Respondent contends that defendant’s appeal should be dismissed due to her failure to obtain a timely certificate of probable cause. Respondent argues that the record does not support defendant’s claim that her plea was induced by an illusory right to appeal the adverse ruling on her motion to suppress. Respondent further argues that, even if the plea were considered involuntary and thus invalid, defendant would be required to timely obtain a certificate of probable cause in order to raise the issue on appeal. Lastly, respondent argues that defendant has not carried her burden of showing that counsel provided ineffective assistance by failing to timely file a request for a certificate of probable cause.
“[S]ection 1237.5 provides that a defendant may not take an appeal from a judgment of conviction entered on a plea of guilty or nolo contendere unless he [or she] has filed in the superior court a statement of certificate grounds, which go to the legality of the proceedings, including the validity of his [or her] plea, and has obtained from the superior court a certificate of probable cause for the appeal. [Citation.]” (People v. Mendez (1999) 19 Cal.4th 1084, 1095 (Mendez); see also, In re Chavez (2003) 30 Cal.4th 643, 650 (Chavez).) Rules 8.304(a) and (b) and 8.308 implement section 1237.5 by providing that a defendant may not take or prosecute an appeal after a plea of guilty or no contest unless he or she has filed a notice of appeal from the judgment as well as a statement of certificate grounds within 60 days after rendition of judgment, and has obtained a certificate of probable cause for the appeal within 20 days after filing of the statement. (See Mendez, supra, 19 Cal.4th at p. 1095 [discussing former rule 31(d)]; Chavez, supra, 30 Cal.4th at p. 650 [same].) Unless the defendant complies with these rules, the superior court must treat the purported appeal as “ ‘Inoperative.’ ” (Rule 8.304(b)(3).)
A defendant may take an appeal without a statement of certificate grounds or a certificate of probable cause if he or she does so “solely on noncertificate grounds which go to postplea matters not challenging [the] plea’s validity and/or matters involving a search or seizure whose lawfulness was contested pursuant to section 1538.5. [Citations.]” (Mendez, supra, 19 Cal.4th at p. 1096.) However, to do so, the defendant must state in his or her timely filed notice of appeal that the appeal is based on one or both of the noncertificate grounds. (Rule 8.304(b)(4).) And, if the notice of appeal contains such a statement, the reviewing court will not consider any issue affecting the validity of the plea unless the defendant has also filed a statement of certificate grounds and obtained a certificate of probable cause. (Rule 8.304(b)(5); see, Mendez, supra, 19 Cal.4th at p. 1096.)
In sum, the defendant may not obtain review of certificate issues unless he or she has complied with section 1237.5 and rules 8.304(a) and (b) and 8.308. “[U]nder section 1237.5 and [the applicable rules], the 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 [and] an intended notice of appeal within 60 days after rendition of judgment, and has obtained a certificate of probable cause within 20 days after filing of the statement and, hence within a maximum of 80 days after rendition of judgment. [Citation]” (Mendez, supra, 19 Cal.4th at p. 1096.)
In Mendez, our Supreme Court instructed that “section 1237.5 and [the applicable rules] should be applied in a strict manner.” (Mendez, supra, 19 Cal.4th at p. 1098.) “Therefore, the defendant may not obtain review of certificate issues unless he had complied with section 1237.5 and [the applicable rules] fully, and specifically, in a timely fashion—that is to say, unless he has done what they require, how they require, and when they require. Plainly, he has not complied with them fully unless he has complied with them in a timely fashion. For, as indicated, their demands extend beyond what and how to when. If he has complied only ‘substantially,’ he has not complied sufficiently; and if he has not complied sufficiently, he has not complied at all. [Citation.]” (Id. at p. 1099; Chavez, supra, 30 Cal.4th at p. 651.)
Defendant’s claim that her plea was induced by an illusory promise is a certificate issue, inasmuch it is a question going to the legality of the proceedings and, specifically, the validity of her no contest plea. (People v. DeVaughn (1977) 18 Cal.3d 889, 896 (DeVaughn); People v. Pannizon (1996) 13 Cal.4th 68, 76.) In DeVaughn, the court stated: “Given the accused’s guilty plea, an extrajudicial statement relating to his guilt of a charged crime does not, by reason of a claim that it was involuntarily or improperly induced, raise an issue on appeal based on ‘constitutional, jurisdictional or other grounds going to the legality of the proceedings’ resulting in the plea. On the other hand, a claim that the plea as distinguished from an extrajudicial statement was improperly induced would challenge the legality of the proceedings resulting in the plea and would thus be cognizable on an appeal pursuant to section 1237.5” (DeVaughn, supra, 18 Cal.3d at p. 896, fn. omitted.)
However, in this case, defendant failed to comply with section 1237.5 and the applicable rules fully and, specifically, in a timely fashion. She did not file a statement of certificate grounds within 60 days of rendition of judgment; the statement was filed over four months late. As a result, defendant did not timely obtain a certificate of probable cause; it was obtained over four months late as well. It is true that defendant filed a timely notice of appeal, but without the statement of certificate issues and the certificate of probable cause in addition to the notice of appeal, this court must decline to address the certificate issues. (Mendez, supra, 19 Cal.4th at p. 1098.)
In In re Benoit (1973) 10 Cal.3d 72, 86-87, our Supreme Court “applied the doctrine of constructive filing based upon a promise or representation made by each defendant’s attorney that he would timely file a notice of appeal on his client’s behalf.” (Chavez, supra, 30 Cal.4th at p. 658.) The Benoit court “relied in part upon the circumstance that the assurances had been made by the defendant’s trial counsel, noting that ‘the prisoner would be more justified in relying on his counsel who had represented him and might have some continuous concern for him . . . .’ [Citation.]” (Chavez, supra, at p. 658.) The Chavez court rejected the use of doctrine of constructive filing in the case before it because, “in the present case defendant did not seek and did not receive any assurances from his original or substituted trial counsel that counsel would prepare or file a written statement of reasonable grounds for appeal.” (Ibid.) In the case before us, there is no indication in the record before us that defendant sought or received any assurances from trial counsel that counsel would prepare or file a written statement of certificate grounds in addition to a notice of appeal. Accordingly, her statement of certificate grounds may not be deemed constructively filed. (Ibid.)
We note that section 1240.1 imposes a duty on appointed counsel in the trial court to file a timely notice of appeal and statement of certificate grounds in certain circumstances, and that counsel’s failure to do so does not foreclose a defendant from filing a notice of appeal on his or her own behalf. (§ 1240.1, subds. (b) & (d).) In Mendez, our Supreme Court stated that section 1240.1 “allows the defendant to comply with section 1237.5 and [the applicable rules] either by himself [or herself] or through another, even if his [or her] counsel does not do so on his [or her] behalf. But we do not believe that it allows [the defendant] not to comply without suffering the consequences.” (Mendez, supra, 19 Cal.4th at p. 1100, fn. 10.) Accordingly, defendant may not circumvent the requirements of section 1237.5 and the applicable rules here by contending on appeal that trial counsel rendered ineffective assistance by failing to timely comply with their provisions. (Ibid; see also, Chavez, supra, 30 Cal.4th at p. 651; People v. Aguilar (2003) 112 Cal.App.4th 111, 116.)
DISPOSITION
The appeal is dismissed.
WE CONCUR: Mcadams, J., Duffy, J.