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Name: People v. Rodriguez
Case #: B239342
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 08/21/2012

Certificate of probable cause is required for a plea defendant to appeal the denial of his motion to vacate judgment. Appellant is a citizen of Guatemala who has lived in the United States for 20 years. He entered a no contest plea to possession of methamphetamine for sale, which is a deportable offense. After being placed on probation appellant filed a nonstatutory motion to vacate judgment, alleging his trial attorney was ineffective for misadvising him regarding the deportation consequences of his plea. He appealed the denial of his motion. The appeal was dismissed for lack of a certificate of probable cause (Pen. Code, § 1237.5, subd. (b)). Although the appeal was technically from an order after judgment, it challenged the plea. The California Supreme Court’s opinion in People v. Totari (2002) 28 Cal.4th 876 [denial of Penal Code section 1016.5 motion appealable under Penal Code section 1237, subdivision (b)] did not support jurisdiction in this case because in Totari the appellant obtained a certificate of probable cause. The Supreme Court did not have occasion to decide, therefore, whether one was required.