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Name: People v. Thurman
Case #: E040720
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 11/21/2007
Summary

Appellant could not challenge plea bargain absent a certificate of probable cause. Following a mistrial on several counts and following the court’s denial of a motion to dismiss those counts, appellant entered into a plea bargain where he pleaded guilty to carjacking in exchange for a three year concurrent term on that count and dismissal of another count and hate crime allegations. Appellant filed a notice of appeal, but did not seek a certificate of probable cause. On appeal, he argued that the motion to dismiss one of the counts was cognizable on appeal because the trial court assured him he could appeal from the judgment, and that the assurance was part of the plea bargain which must be specifically enforced. The appellate court rejected the argument, finding that there was no basis in the record for concluding that the trial court intended to waive the requirements of section 1237.5. Neither party mentioned waiving a certificate of probable cause. The fact that the court told appellant he could appeal did not mean that he could do so without obtaining a certificate of probable cause, and there was nothing in the record which showed that appellant based his decision to enter into a plea bargain based on that understanding. Even if the court did intend to assure appellant that it would waive the requirements of section 1237.5, such a promise would be unenforceable because the court had no authority to do so.
Wende/Anders procedure does not apply to motions for a new trial in criminal proceedings. Further, trial counsel was not required to filed a Wende/Anders brief for failing to find any basis for a motion for new trial. Nor was there any showing that counsel’s failure to pursue a new trial motion was ineffective assistance of counsel. Since appellant could not point to any issues which would have successfully been raised in such a motion, it must be presumed that his attorney chose not to file a motion because it was without merit.