California Court of Appeals, First District, Fifth Division
Pub. Order & mod. 1/7/14
Superior Court of Solano County, Nos. FCR294075, 30598, Elliott Lee Daum, Judge.
Paul Kleven, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Seth K. Schalit and Laurence B. Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Brian Preston Mashburn pled no contest to felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and the trial court placed him on formal probation for three years. He filed a notice of appeal purporting to challenge the denial of his Penal Code section 1538.5 motion to suppress evidence. Because appellant waived his right to appeal as part of his plea bargain and because he did not obtain a certificate of probable cause, this appeal must be dismissed.
In December 2012, appellant was charged by information with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count one) and possession of a device for smoking a controlled substance (id., § 11364.1, subd. (a); count two).
In January 2013, appellant filed a motion to suppress evidence (§ 1538.5), which the trial court denied in March. Thereafter, appellant pled no contest to count one. A plea form reflects appellant’s agreement to plead no contest to count one with a maximum term of three years in jail. Numbered paragraph 6 of the form is initialed “BM” and reads, “Even though I will be convicted in this case as a result of my plea, I have the right to appeal the judgment and rulings of the court. [¶] I give up my right of appeal.” (Boldface in original.) Numbered paragraph 13, also initialed “BM, ” reads, “I declare that my attorney has read and explained this document to me, and I hereby freely and voluntarily, having full knowledge and understanding of the rights that I am giving up and the possible consequences which may result from my plea, do hereby request the Court to accept my new and different plea(s).” The plea form was also signed by defense counsel, who averred she read and explained the document to appellant and was satisfied he understood the consequences of the plea and made his decision to plead “only after a full discussion with [her] of the facts and the law of this case.”
The trial court accepted appellant’s plea and found that appellant was fully informed of his rights and that his waivers were knowing, intelligent, and voluntary. The court dismissed count two and a separate criminal case on the prosecutor’s motion, and placed appellant on three years’ formal probation with imposition of sentence suspended, a time-served jail term, and Proposition 36 treatment.
Appellant filed a notice of appeal based on the denial of his motion to suppress. The record contains no certificate of probable cause.
Appellant contends the trial court erred in denying his motion to suppress. He also contends he did not knowingly and intelligently waive his right to appeal and any such waiver did not encompass his challenge to the denial of the motion to suppress. Respondent contends the present appeal must be dismissed because appellant challenges the enforceability of the waiver of appeal that was part of his plea ...