People v. Pack CA2/7 ( 2020 )

Filed 11/3/20 P. v. Pack CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B300931
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA089914)
v.
CHARLES RAY PACK,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Mildred Escobedo, Judge. Dismissed.
Sarvenaz Bahar, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
________
Charles Ray Pack appeals from an order denying his
postjudgment motion to withdraw his plea. Because he failed to
obtain a certificate of probable cause, the trial court’s denial of
his motion to withdraw his plea is not appealable. Accordingly,
we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
On July 16, 2019, in a negotiated plea agreement, Pack
pleaded no contest to one count of elder abuse (Pen. Code, § 368,
subd. (b)(1)) and one count of false imprisonment by violence
(§ 236), and he admitted the special allegation as to the elder
abuse count that he inflicted great bodily injury (§12022.7, subd.
(a)). Pack also admitted he suffered a prior conviction of a
serious or violent felony, which constituted a strike within the
meaning of the three strikes law (§§ 667, subds. (a)(1), (b)-(i),
1170.12). As part of the negotiated plea, Pack waived his right to
appeal his conviction and sentence. The trial court sentenced
Pack pursuant to the terms of the plea agreement to an
aggregate state prison term of 12 years four months.
On July 23, 2019 Pack, represented by counsel, moved to
withdraw his plea. Pack asserted his medication for back pain
and his mental condition impaired his judgment and prevented
him from understanding the nature and consequences of his plea.
In addition, Pack believed he “was rushed” to decide whether to
enter a plea or go to trial after the trial court denied his motion to
represent himself pursuant to Faretta v. California (1975)
422 U.S. 806 and his motion for a continuance to retain private
counsel. Following a hearing, the court denied Pack’s motion to
withdraw the plea.
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Pack filed a timely notice of appeal from the judgment of
conviction and checked the preprinted box stating, “This appeal is
after the court denied defendant’s motion to withdraw his plea.”
Pack did not obtain a certificate of probable cause.
DISCUSSION
We appointed counsel to represent Pack on appeal. After
examination of the record, counsel filed an opening brief in which
no issues were raised. Appellate counsel advised Pack he could
submit a supplemental brief raising any contentions or issues he
wished us to consider. On August 7, 2020 we received a two-page
handwritten response with an attached investigation report
summarizing the investigator’s April 10, 2019 interview of the
victim. Pack argued the evidence was not sufficient to support
his conviction, he was prescribed psychotropic medication in
custody that had adverse side effects, and the trial court
improperly denied his motion for a continuance to retain private
counsel. (See Smith v. Robbins (2000) 528 U.S. 259, 277-284;
People v. Kelly (2006) 40 Cal. 4th 106, 118-119; People v. Wende
(1979) 25 Cal. 3d 436, 441-442.)
“Penal Code section 1237.5 provides that a defendant may
not appeal ‘from a judgment of conviction upon a plea of guilty or
nolo contendere’ unless the defendant has applied to the trial
court for, and the trial court has executed and filed, ‘a certificate
of probable cause for such appeal.’” (People v. Shelton (2006)
37 Cal. 4th 759, 766.) An exception to the requirement for a
certificate of probable cause applies where a defendant appeals
from a ruling involving a search and seizure issue or where the
defendant raises a postplea claim that does not challenge the
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validity of the plea. (People v. Johnson (2009) 47 Cal. 4th 668, 677
[defendant must obtain a certificate of probable cause to appeal
denial of a motion to withdraw a guilty or no contest plea]; People
v. Cuevas (2008) 44 Cal. 4th 374, 379 [“Exempt from this
certificate requirement are postplea claims, including sentencing
issues, that do not challenge the validity of the plea.”]; People v.
Panizzon (1996) 13 Cal. 4th 68, 76.)
Pack’s appeal is an attack on the validity of the plea
because he bargained for the specific sentence he received—an
aggregate term of 12 years four months in state prison. He also
specifically waived his appellate rights as part of the negotiated
plea. Because Pack did not obtain a certificate of probable cause,
we dismiss his appeal. (§ 1237.5; see People v. Cuevas, supra,
44 Cal.4th at p. 377; People v. Panizzon, supra, 13 Cal.4th at
p. 73.)
DISPOSITION
The appeal is dismissed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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