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Name: People v. Nelms
Case #: C055100
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 08/14/2008

An appellate court may decline to dismiss an appeal upon filing of abandonment. While the appeal was pending in Nelms's case, the trial court granted his motion to recall the sentence pursuant to Penal Code section 1170, subdivision (d). The trial court also granted Nelms's motion to dismiss his smuggling conviction. It then resentenced Nelms on the remaining count. The appellate court received no notice of the subsequent trial court proceedings and issued an opinion reversing the conviction on the smuggling charge because of instructional error. It also remanded the case to the trial court…

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Name: People v. Caravajal
Case #: C053507
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 12/17/2007

Absent a clear indication that a defendant's motion to withdraw the plea is based on a claim of ineffective assistance of counsel, the trial court's failure to hold a Marsden hearing cannot be addressed on appeal unless a certificate of probable cause has issued. Appellant pled no contest to receiving stolen property and possession of a controlled substance and admitted a prior "strike" conviction. At the sentencing hearing, he moved to withdraw his plea on the grounds that he had not understood various consequences of his plea. The trial court appointed alternate counsel to represent appellant to…

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Name: People v. Cervantes
Case #: B183412
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 05/16/2007

If the lost or destroyed portion of the reporter's transcripts from the trial proceeding is substantial, such that a meaningful appellate review and defendant's ability to perfect his appeal are affected, and the record cannot be reconstructed, defendant may be entitled to a new trial. (Pen. Code, sec. 1181.) On the appeal of his jury conviction for drug offenses, appellant filed a motion for summary reversal because the testimony of the sole prosecution witness could not be transcribed. The appellate court denied the motion and remanded for the parties to prepare a settled statement. The trial judge approved a…

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Name: People v. Emery
Case #: C050534
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 06/15/2006

When the defendant challenges the validity of the plea without obtaining a certificate of probable cause, the Court of Appeal will dismiss the appeal. On appeal, the defendant argued that the trial court had abused its discretion and deprived him of due process of law when it failed to grant a continuance so that defense counsel could investigate whether grounds existed to justify a motion to withdraw the plea. The Court of Appeal held that this argument constituted an attack on the validity of the plea, requiring a certificate of probable cause. Since the defendant had not…

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Name: People v. Torres
Case #: C048309
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 11/08/2005
Subsequent History: Revw granted 2/8/06: S139595

The requirements of Anders v. California (1967) 386 U.S. 738 and People v. Wende (1979) 25 Cal.3d 436 do not apply to appeals from civil commitments of sexually violent predators. Anders and Wende apply only to criminal prosecutions, and persons committed as sexually violent predators are not similarly situated to criminal defendants. Fundamental fairness does not compel application of Anders and Wende to these proceedings, and the appeal is accordingly dismissed due to appellant's failure to identify any claims of reversible…

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Name: People v. Thomas
Case #: B177775
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 11/30/2004
Subsequent History: 3/16/05: rev. granted, depub & transferred back to COA: S130587

Where a defendant challenges the validity of his plea on appeal without having first obtained a certificate of probable cause, the appeal must be dismissed. The defendant here filed a handwritten, four-page notice of appeal which outlined multiple challenges to his no-contest plea, as well as several unspecified sentencing issues. After the Court of Appeal requested briefing on the operability of the appeal, defendant argued that the inclusion of noncertificate grounds in the notice of appeal required the court to treat the appeal as operative. The Court of Appeal rejected this argument and dismissed the appeal. …

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Name: People v. Kendrick
Case #: F044059
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 10/04/2004
Subsequent History: Rev. granted 1/19/05: S129294

A defendant may enter into a plea agreement that permits sentencing under the determinate sentencing law even if the charged offense is subject to the provisions of Proposition 36. The defendant here was charged with possession of cocaine for sale, transportation of cocaine not for personal use, and several enhancements. He entered into a plea agreement in which he pled to simple possession in exchange for a maximum sentence of two years in prison. He also entered a Cruz waiver (People v. Cruz (1988) 44 Cal.3d 1247) allowing a maximum term of three years in prison if…

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Name: In re Melissa W.
Case #: B151211
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 03/19/2002
Subsequent History: Modified 4/11/02 without chng in judgment; Rev. denied 5/22/02.

Grandparents petitioned for guardianship of the 16-year-old minor, who had been living with them. The grandparents’ petition was denied, and the minor was ordered returned to the father. The order was stayed while the minor finished school and before relocating. In the interim, with her grandparents’ consent, the minor went to the Bahamas accompanied by her grandparents’ lawyer, and got married. When father learned of the marriage, he moved for dismissal of the grandparents’ appeal. The appellate court here ordered dismissal of the appeal. The grandparents could not obtain review of a judgment while…

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Name: People v. Mumm
Case #: D035303
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 05/24/2002
Subsequent History: Rev. & depublication request denied 7/17/02.

Appellant did not waive his right to challenge an Arizona prior conviction because when he waived his right to appeal based on "issues regarding priors allegations," the court had not yet decided at that time whether the prior was a strike. The Arizona robbery qualified as a strike because both it and the California robbery statute require an intent to deprive the owner of possession of property either permanently or for an unreasonable length of time or an intent to deal with the owner’s property in such a way that there is a substantial risk of permanent…

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Name: People v. Mazurette
Case #: S081661
Court: CA Supreme Court
District CalSup
Opinion Date: 01/04/2001
Subsequent History: None

Under Penal Code section 1237, a defendant can appeal only from a final judgment of conviction. Under Penal Code section 1237.5, no appeal can be taken following a guilty plea, and under Penal Code section 1538.5, subdivision (m), an appeal of a suppression motion can be taken following a guilty plea. Under Penal Code sections 1000-1000.4, entry of judgment of conviction is deferred when the defendant is diverted to a drug program. The interaction of these statutes creates an uncertainty regarding whether a defendant who has been diverted can appeal the denial of a suppression motion. …

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