People v. Cortez, 091417 SUPAD, BR 053118

Docket Nº:BR 053118
Opinion Judge:KUMAR, Acting P. J.
Party Name:THE PEOPLE, Plaintiff and Respondent, v. CESAR CORTEZ, Defendant and Appellant.
Attorney:Andrea Keith for defendant and appellant. Michael N. Feuer, City Attorney, City of Los Angeles, Debbie Lew, Assistant City Attorney, and Kent J. Bullard, Deputy City Attorney, for plaintiff and respondent.
Judge Panel:We concur: RICCIARDULLI, J. RICHARDSON, J.
Case Date:September 14, 2017
Court:Superior Court of California
 
FREE EXCERPT

THE PEOPLE, Plaintiff and Respondent,

v.

CESAR CORTEZ, Defendant and Appellant.

BR 053118

Superior Court of California, Appellate Division, Los Angeles

September 14, 2017

APPEAL from a judgment of the Superior Court of Los Angeles County, Van Nuys Trial Court, Eric P. Harmon, Judge. Appeal dismissed.

Andrea Keith for defendant and appellant.

Michael N. Feuer, City Attorney, City of Los Angeles, Debbie Lew, Assistant City Attorney, and Kent J. Bullard, Deputy City Attorney, for plaintiff and respondent.

OPINION

KUMAR, Acting P. J.

Defendant and appellant Cesar Cortez was charged with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and possession of a device used for smoking narcotics (Health & Saf. Code, § 11364, subd. (a)). Following the denial of his motion to suppress evidence (Pen. Code, § 1538.5), 1 defendant filled out a form indicating his desire to enter a plea of guilty to the charge of possessing methamphetamine and be placed on the trial court's Deferred Entry of Judgment (DEJ) program (§ 1000 et seq.). The trial court accepted defendant's guilty plea, placed defendant on DEJ, and dismissed the remaining charge.

Pursuant to the statutory requirements for DEJ, sentencing and judgment were deferred for 18 months and, if defendant complied with the conditions of DEJ, his case would be dismissed upon the expiration of that period. To achieve a dismissal, defendant was required to: complete a court-approved counseling program or attend 52 Alcoholics (or Narcotics) Anonymous meetings; abstain from possessing controlled substances or related paraphernalia; refrain from associating with drug users or sellers; and submit to warrantless searches and seizures by peace officers. Defendant represented to the trial court that he understood DEJ and agreed to participate in the program.

After defendant was placed on DEJ, he filed a notice of appeal challenging the court's order denying his motion to suppress. In his opening brief, defendant states the appeal is authorized “because it affects the substantial rights of the party....” The People filed a respondent's brief defending the propriety of the order but also taking the position that, because judgment has been deferred, the order is not appealable. Defendant did not file a reply brief so the People's argument (particularly with respect to appealability) has not been rebutted. We agree with the People on the jurisdictional issue and dismiss the appeal.

DISCUSSION

“The right to appeal is statutory only, and a party may not appeal a trial court's judgment, order or ruling unless such is expressly made appealable by statute. [Citations.]” (People v. Loper (2015) 60 Cal.4th 1155, 1159; see also People v. Gallardo (2000) 77 Cal.App.4th 971, 980.) Because defendant only pled guilty to a misdemeanor offense, we limit our review to four statutory provisions authorizing appeals in misdemeanor cases-section 1466, subdivision (b)(1) (a defendant may appeal from “a final judgment of conviction”), section 1466, subdivision (b)(2) (a defendant may appeal from “any order made after judgment affecting his or her substantial rights”), section 1538.5, subdivision (m) (a defendant may seek review of an order denying a suppression motion “notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty”), and section 1538.5, subdivision (j) (authorizing the prosecution and the defense to appeal a ruling on a suppression motion prior to a misdemeanor trial).

It is clear that the first three provisions do not authorize defendant's appeal in light of our Supreme Court's decision in People v. Mazurette (2001) 24 Cal.4th 789, 791-796 (Mazurette). To determine the applicability of the fourth cited statute (§ 1538.5, subd. (j)), we are required to assess the statutory scheme of which it is a part, but the end result is the same, i.e., it is not a vehicle for a defendant who has been placed on DEJ to appeal the pre-plea denial of a suppression motion.

Mazurette

In Mazurette, our Supreme Court was faced with deciding “whether a criminal defendant granted a deferred entry of judgment can, immediately following his or her plea of guilty..., appeal an adverse pretrial decision on a motion to suppress evidence....” (Mazurette,

supra, 24 Cal.4th at p. 792.) Although Mazurette's plea was to a felony, the issue is not unique to felonies and, for that reason, the same rationale used by...

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