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Name: People v. McEwan
Case #: B193724
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 01/30/2007

On appeal from a superior court judgment following a guilty or no contest plea, a defendant must obtain a certificate of probable cause pursuant to Penal Code section 1237.5, unless the notice of appeal states that the plea is from the denial of a Penal Code section 1538.5 motion to suppress or is based on grounds that arose after the entry of the plea and do not challenge the plea’s validity. Here, defendant filed the standard notice of appeal form with check marks on the boxes indicating that (1) the appeal was from a guilty or no contest plea, and (2) challenged the plea. His request for a certificate of probable cause was denied. Appellate counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436. In response to a request from the court as to why the appeal should not be dismissed, counsel argued that the notice of appeal should be liberally construed to include sentencing issues. Counsel then separately filed a request to deem the notice to include the requisite language but with no declaration. The court denied the request and noted that due to the absence of any indication in the record, or otherwise, that appellant wished to appeal non-certificate grounds, the appeal must be dismissed.