Filed 6/29/16 P. v. Guzman CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE ORELLANA GUZMAN,

Defendant and Appellant.

 B265709

 (Los Angeles County

 Super. Ct. No. LA077563)

APPEAL from a purported order of the Superior Court of Los Angeles County, 

Karen Joy Nudell, Judge. Appeal dismissed.

Law Office of Zulu Ali and Zulu Ali for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Stephanie A. Miyoshi and 

William N. Frank, Deputy Attorneys General, for Plaintiff and Respondent.

——————————
2

Jose Orellana Guzman (Guzman) purports to appeal from an order denying a 

motion to withdraw a plea. Guzman contends that the trial court failed to advise him 

properly of the immigration consequences of his plea pursuant to Penal Code section 

1016.5, subdivision (a).1 However, the record shows that the trial court never ruled on 

his motion to withdraw his plea. Because there is no order for this court to review, the 

required statutory prerequisite for appellate review is absent. We therefore dismiss the 

appeal without prejudice.

BACKGROUND

On April 23, 2014, the People filed a felony complaint charging Guzman with two 

counts stemming from an incident on or about March 14, 2014 involving Guzman and his 

cohabitant Elizabeth G. Count 1 alleged Guzman willfully inflicted corporal injury upon 

Elizabeth G., a felony in violation of section 273.5, subdivision (a); count 2 alleged 

Guzman willfully threatened to commit a crime which would result in death and great 

bodily injury to Elizabeth G., a felony in violation of section 422, subdivision (a). On 

May 15, 2014, Guzman waived formal arraignment and pleaded not guilty to counts 1 

and 2.

On July 16, 2014, the People filed an amended felony complaint adding count 3 

which alleged assault by means likely to produce great bodily injury, a felony in violation 

of section 245, subdivision (a)(4). On the same day, the People arraigned Guzman on 

count 3; he pleaded not guilty to that count.

Also on July 16, 2014, Guzman signed a standard felony advisement of rights, 

waivers, and plea form; the form declared that Guzman intended to plead guilty or no 

contest to count 1. On July 30, 2014, at a court hearing, Guzman waived his right to a 

jury trial, withdrew his plea of not guilty to count 1, and pleaded nolo contendere to 

count 1.

 

1 All further statutory references are to the Penal Code.
3

After accepting Guzman’s plea, the trial court suspended imposition of sentence, 

placed Guzman on formal probation for five years, ordered him to serve 365 days in the

Los Angeles County jail, and ordered him to complete a 52-week domestic violence 

treatment program. Pursuant to the plea agreement, the trial court dismissed counts 2 

and 3.

On February 2, 2015, the trial court attempted to hold a hearing on Guzman’s 

motion to withdraw his plea and on his motion to reduce his jail sentence from 365 days 

to 364 days;

2 however, due to Guzman’s absence at the hearing, the trial court stated its 

intention to take both matters off calendar. Guzman’s counsel agreed that the trial court 

should take off calendar Guzman’s motion to withdraw his plea but objected that the trial 

court should nevertheless hear Guzman’s motion to reduce his jail sentence. The trial 

court acquiesced; after hearing argument on the jail sentence reduction motion, the trial 

court denied the motion. Following the hearing, a February 2, 2015 minute order stated

that the trial court had denied the motion to reduce Guzman’s jail sentence. However, the 

minute order said nothing about the motion to withdraw Guzman’s plea and made no 

mention of the trial court’s taking off calendar the motion to withdraw plea.

On April 2, 2015, Guzman filed a notice of appeal and a request for certificate of 

probable cause on the issue involving the adequacy of the trial court’s immigration 

consequences advisement pursuant to section 1016.5. On April 16, 2015, the trial court 

granted Guzman a certificate of probable cause.

DISCUSSION

As a threshold matter, we must first determine whether we have jurisdiction to 

review the order Guzman challenges. We conclude that we do not.

“‘“It is settled that the right to appeal is statutory and that a judgment or order is 

not appealable unless expressly made so by statute.”’” (People v. Mena (2012) 54 

Cal.4th 146, 152.) Prescribing the general procedure for raising an allegation that a trial 

 

2 The record does not indicate the date that Guzman filed the motion to withdraw 

his plea.
4

court failed to comply with section 1016.5, that statute provides that the defendant may 

file a motion to vacate a judgment in order to withdraw his or her plea of guilty or nolo 

contendere and to enter a plea of not guilty. (§ 1016.5, subd. (b).) The trial court’s 

denial of such a statutory motion is an appealable order pursuant to section 1237, 

subdivision (b). (People v. Totari (2002) 28 Cal.4th 876, 879, 887; People v. Arriaga 

(2014) 58 Cal.4th 950, 960.) Section 1237, subdivision (b) provides that a defendant may 

take an appeal from “any order made after judgment, affecting the substantial rights of 

the party.”

Here, in his notice of appeal and in his opening brief, Guzman represents that he

appealed from the trial court’s February 2, 2015 order denying his motion to withdraw

his plea. However, there is no such order. Guzman cites to the February 2, 2015 minute 

order, but the minute order only documents the trial court’s ruling on Guzman’s jail 

sentence reduction motion. The record contains no indication that the trial court ruled on 

Guzman’s motion to withdraw his plea; in fact, the February 2, 2015 hearing transcript 

confirms Guzman’s counsel’s concurrence with the trial court’s decision to take off 

calendar Guzman’s motion to withdraw his plea. There is no order on the motion to 

withdraw Guzman’s plea for this court to review; thus, the required statutory prerequisite 

for appellate review is absent. We do not have jurisdiction to consider this appeal and 

must dismiss it.

We recognize that the trial court granted Guzman’s request for a certificate of 

probable cause on the question of the adequacy of the trial court’s advisement on 

immigration consequences pursuant to section 1016.5. But, a certificate of probable 

cause is not a substitute for a ruling on a motion—and therefore is ineffective to confer 

appellate jurisdiction. (See, e.g., People v. DeVaughn (1977) 18 Cal.3d 889, 896.) 

Guzman has failed to take the necessary procedural steps to perfect an appeal. We must 

dismiss his appeal.
5

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED.

JOHNSON, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.